Judge Nicholas G. Garaufis

Criminal Justice Reform: Judge’s Discretion in Sentencing Is Far Broader Than What Most Think – and Reeks of Lack of Due Process!

I always find it interesting when people express their displeasure over some aspect of the U.S. criminal justice system – or its judicial system – that they think is inappropriate or unfair.

Quite often their unhappiness is based – at least in part – on the fact that they simply never knew about the aspect they now find troubling.

Many people, for example, are surprised to find out that the 13th Amendment to the U.S. Constitution did not entirely ban slavery in our country (This fact is certainly not included in most textbooks that are used to teach U.S. History in our schools and colleges).

 

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Penal labor in the United States –  including a form of slavery or involuntary servitude – is explicitly allowed by the 13th Amendment of the U.S. Constitution. This legal slavery is allowed when used as punishment for committing a crime.

 

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A chain gang from an earlier era

 

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Modern-day equivalent

 

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Not all that much has changed in the slave population in the US in the past 175 years – except the slaves today are treated far worse.

But, when one examines the actual language of the 13th Amendment, it’s very clear:
Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2: Congress shall have power to enforce this article by appropriate legislation.

When people are shocked by the abysmal and inhumane conditions that currently exist in many of our prisons, they need look no further than what is generally referred to as the “exception clause” in the 13th Amendment to find out why those conditions still exist.

Prisoners are slaves.

That’s why they’re paid so little – or absolutely nothing – for the work they’re required to do within the prisons to which they’ve been assigned.

That’s why those who are housed in some privately run prisons can be rented out to do work for Fortune 500 companies at subminimum wages.

That’s why they receive little, if any, health and dental care while they’re incarcerated.

That’s why they’re incarcerated in prisons that offer few, if any, educational or vocational programs.

That’s why they can be restricted to two meals per day – or served peanut butter and jelly sandwiches as one of their meals every day of the week.

That’s why they can be assigned to a prison such as the Metropolitan Detention Center – where Keith Raniere currently resides – that does not allow inmates to ever go outside and that often has serious issues with its heating and air conditioning systems.

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Prisoners suffering from cold at Metropolitan Detention Center in Brooklyn – one of the human hell holes on earth, a medieval place of tortures that a future humane civilization will come to look upon as official US sadism and lack of any semblance of human decency.

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When It Comes to Sentencing, Judges Can Pretty Much Do Whatever They Want

Recently, many people expressed surprise that Judge Nicholas G. Garaufis will likely hear from numerous people who claim to be victims of Keith Raniere and/or his co-defendants – and who will be allowed to testify without publicly revealing who they are (Each of the defendants will, however, be provided with the names of each person who is allowed to read a “Victim Impact Statement” into the record at their sentencing hearing).

Even when it comes to vermin like Raniere, many were bothered by the process that was going to take place at his sentencing hearing.

Marie White’s depiction of Keith Raniere

Terms like “totally unfair”, “unconstitutional”, and “no due process” showed up in many comments.

Well, guess what folks, it’s even worse than you think.

Regardless of mandatory minimum laws that ostensibly require a specified minimum sentence for certain types of crimes – and despite sentencing guidelines that are supposed to ensure a high level of equality and fairness in the sentences that are imposed upon people who commit the same crimes – the simple reality is that a federal judge can hand down whatever sentence (s)he wants.

Regardless of how harsh or how lenient it is, whatever sentence is handed down will remain in place unless/until it’s overturned by a higher court.

And so it is that all six NXIVM defendants – Keith Raniere, Clare Bronfman, Nancy Salzman, Lauren Salzman, Allison Mack, and Kathy Russell – will be totally at the mercy of Judge Garaufis when they stand before him for sentencing.

Clare Bronfman may have thought she had cut a good plea deal with her high-priced celebrity lawyer Mark Geragos. He got her shit. Though the plea deal said 21-27 months – as a guideline – the dunce did not realize that the judge is not remotely held to that guideline and could if he wishes to, sentence her for up to 25 years – the consecutive max sentences for her two felonies. Her plea deal was not worth the paper it was printed on. And she is not alone.

Judge Garaufis has already informed Clare Bronfman that he is considering an “above guidelines” sentence for her.

Marie White’s depiction of Clare Bronfman

That’s because her high-priced dream team of attorneys negotiated the type of plea deal that still allows Judge Garaufis to determine what her sentence will be.

Clare Bronfman being led to slaughter by Mark Geragos

There is another type of plea deal that only allows the judge to approve or reject the entire agreement that has been reached by the prosecution and the defense – including the agreed-upon sentence.

These are not as common – and many criminal defense attorneys never utilize them. In large part, that’s because if the judge rejects the deal, the case goes to trial.

But they’re the only way that a defendant who pleads guilty can know for certain how much time they’ll be serving when they agree to a plea deal.

 

Clare with her super high priced attorney Mark Geragos – as seen through the courthouse door. He might have arranged or tried for a plea deal that guaranteed a maximum sentence – – but he either did not know about it, did not try for it, or could not get it. But her supposed 21-27 month plea deal is already all but out the window.

*****

What Facts & Factors Will Judge Garaufis Take Into Consideration in Sentencing the NXIVM Defendants?

When Judge Garaufis begins deliberating what sentences he should hand out to the NXIVM defendants, he’ll probably start by reading each defendant’s “Pre-Sentencing Report”.

And he’ll review what the federal “Sentencing Guidelines” suggest in terms of the amount of time each of them should spend behind bars.

He’ll also read the “Victim Impact Statements” that have been submitted for his consideration – and listen to those victims that choose to make an oral statement at the sentencing hearings.

But, at the end of the day, it’s entirely up to him as to how much time – if any – each defendant will spend in federal prison.

His broad discretion will allow him to consider everything from Probation to Life – and everything in-between – for each of the NXIVM defendants.

For most of the defendants, he will likely stay within the applicable guidelines – and the recommendations set forth in their respective “Pre-Sentence Report”.

But the point is that he doesn’t have to do either of those things…

And for those of you who were bothered by the fact that over and above the crimes to which they’ve pleaded guilty – or, in Raniere’s case, the crimes he was convicted of committing – Judge Garaufis can also take into consideration other crimes that the NXIVM defendants are alleged to have committed, even that’s not the full extent of his discretion in this matter.

Despite the 2017 ruling by the U.S. Supreme Court in the case of Nelson v. Colorado, it is still possible that a U.S. District Court judge can take into account both “uncharged crimes” – and, brace yourselves, “acquitted crimes” – when determining what sentence would be appropriate in a given case.

Prior to the Nelson case, judges generally followed the guidelines set forth in the 1997 U.S. v. Watts case.

Under Watts, the standard practice in federal courts was that “uncharged or even acquitted conduct can be added to a defendant’s relevant conduct for the other counts for which he’s convicted, as long as it can be (1) proven by a preponderance of the evidence and (2) it is related in some way to the crime of conviction”.

Because the more recent Nelson case concerned a state statute – i.e., the Colorado Exoneration Act – it is unclear whether it really amounts to an overturning of the Watts doctrine.

Meanwhile, two U.S. Senators – Dick Durbin (D–Illinois) and Chuck Grassley (R–Iowa) – introduced legislation last Fall that would codify some of the principles set forth in the Watts case.

But despite broad-based, bi-partisan support for the Prohibiting Punishment of Acquitted Conduct Act, it has not yet become law – which means that any federal judge can still take into account both “uncharged conduct” and “acquitted conduct” in determining what is an appropriate sentence for a convicted defendant.

Even if the Prohibiting Punishment of Acquitted Conduct Act ever becomes law, it will only take away federal judges’ ability to consider “acquitted conduct” in meting out punishment.

They will still be able to take into account “uncharged conduct” – which is exactly what Judge Nicholas G. Garaufis will likely do in sentencing at least some of the NXIVM defendants.

America: land of the free – as long as you’re not a prisoner.

America: justice for all – as long as you’re not being sentenced by a federal judge.

*****


About the author

K.R. Claviger

11 Comments

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  • While there have been attempts to bring some level of logic, predictability and uniformity to sentencing, such as the sentencing guidelines for judges, it is pretty much to the discretion of the judge in each case.

    The complicating factor in the NXIVM case is that no one anticipated the number of people claiming to be injured as a result of the criminal conduct of these defendants.

    Just talking about NXIVM DOS we have the possibility of well over 100 victims filing victim impact statements.

    And the fact that the blackmail material is still in the hands of the defendants means that the victims could be victimized in the future by the release of this blackmail material.

    NXIVM is really an ongoing crime.

  • Great analysis, Clav, as usual! You’re a gift. They way you can translate legalese, these constitutional complexities to plain English is a Godsend for the rest of us stammering idiots!

    Here’s the thing, though — under the circumstances — and as you once said in post a few months ago — because it’s NXIVM, not only do I not mind that they can be punished for crimes they weren’t even charged with — rather, because it’s NXIVM — and they are guilty as sin — but they haven’t and won’t be charged with all they’ve done — mostly, because of WHO they did it to and WHO aided and abetted them in doing so — this is all MUSIC TO MY EARS and A GLORY AND WONDER TO BEHOLD!!

    GOD BLESS AMERICA!!!!

    Say, maybe Clare Bear and Nazi Nancy can work on prison reform from the inside?

    Is peanut butter on the NXIVM diet?

  • What I find amazing is the utter lack of research into the affects of punitive measures. Some judges prefer shorter sentences with longer probation, others long sentences etc… and there’s nothing to say if/when one would be better than the other.

  • A slight difference over the pond where a prisoner serving time for killing a person has somehow been allowed access and posted on Facebook, mocking his sentence and how easy prison life is.

  • Yes, prisoners are slaves.

    That’s true in every country, else it wouldn’t be possible to imprison them without their consent.

    Thanks for stating the obvious, you bleeding heart liberal asshole.

    Hey, I have a solution… Why not just ask for their consent before we lock them up? There’s a wonderful idea. I’m sure they’ll all agree voluntarily. Not. Now fuck off.

    Peanut butter and jelly sandwiches, you say?

    Oh my god, what torture. LOL.

    Guess what dickhead?

    Peanut butter has 100 calories per tablespoon and is full of protein. A few tablespoons of PB with a decent serving of jelly — along with bread added — can equal close to 500 calories with plenty of protein, fat and carbs for adequate nutrition. That’s enough food for prisoners to get fat on, if they eat a couple of those.

    Prisoners at Auschwitz would have killed for a peanut butter and jelly sandwich.

    You say our prisoners work for pennies per hour? Yeah, so what.

    Are you suggesting we pay them $20/hour? That way going to prison can be considered a viable way to send money to your family if you’re jobless, thereby encouraging people to commit crimes or at least not discouraging it.

    It’s a punishment, asshole.

    If Fortune 500 companies wanna get cheap labor from prisoners then so be it, who fucken cares.

    I can promise you that any prisoner doing work for a Fortune 500 company is not being ‘forced’ to do it. They are volunteers and working for those companies is a prison privilege.

    If Judge Garaufis gives Clare Bear an ‘upward departure’ from guidelines then I’ll raise a glass of wine and toast him for it.

    If she gets 5 years, then the system will have worked.

    If you got a problem with that, then kindly cry in the corner, you pussy.

    If you weren’t such a shitty attorney, then maybe your clients wouldn’t all be in the slammer and you wouldn’t be reduced to begging for their good treatment by writing these articles.

  • K.R. Claviger,

    Wonderful, well-written article!!!! Great explanation of the 13th Amendment and its implications and effects on incarceration. I genuinely missed your articles.
    Take care!

  • It appears Keith Raniere thought he was “the Judge” of NXIVM and him and his upper leadership carried out section 1 of the 13th amendment very well and often.

    Section 1: Neither slavery nor involuntary servitude, except as a punishment of a crime against Raniere and other top leaders whereof the party shall have been duly convicted by
    Raniere and his Executive Board, opinions shall exist within the Land of Oz or any place his subject to his jurisdiction.

    NXIVM called them Ethical Breeches and atonement for them ran a garment of pulling weeds in Salzman’s yards, taking expensive courses work, giving Raniere blow jobs, losing paid positions, cleaning Lauren Salzman’s cat box, etc.

About Frank Parlato

About Frank Parlato

Frank Parlato is an investigative journalist.

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Frank Parlato was the lead investigator and coordinating producer of Investigation Discovery's 2 hour blockbuster special 'The Lost Women of NXIVM.'

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