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).

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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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.

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.

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

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.

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.

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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.

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K.R. Claviger