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On the Other Hand, 10 Years Is Much Too Short a Sentence for This:

From United States v. Kane, decided yesterday by the Eighth Circuit (thanks to How Appealing for the pointer). Ruth Kane let Joe Champion sexually abuse Kane's daughter 200 times over two years, starting when the daughter was nine, and even "physically participated and restrained her daughter" during some of the acts. "Kane's daughter and Champion testified Kane received payments of $20 from Champion as compensation for providing her daughter for Champion's sexual gratification."

Kane had been sentenced to 17.5 years under the federal Sentencing Guidelines; but after the Supreme Court's decision that the Guidelines couldn't be constitutionally applied, tje trial court resentenced her to 10 years. The Eighth Circuit reversed, holding that "Kane's 120-month sentence quite simply is not proportional to the circumstances of the crimes and the persons involved."

PersonFromPorlock:
Yick. There are times I regret being against capital punishment.
12.19.2006 3:15pm
anonVCfan:
There are times I reconsider my qualms about prison rape. This guy deserves the worst he can get.

Coker v. Georgia is my least favorite Supreme Court decision, but execution may be too good for this guy.
12.19.2006 3:23pm
DDG:
Wow. I'd be perfectly comfortable with capital punishment for this. In fact, I'd be perfectly comfortable with hanging, drawing and quartering. Or perhaps burning at the stake. Darn 8th Amendment.
12.19.2006 3:31pm
American Psikhushka (mail) (www):
Yep - making your children available for sexual exploitation is about the lowest you can get.
12.19.2006 3:32pm
James Dillon (mail):
The Second Circuit recently issued an opinion in the other direction, striking down a 30-year sentence (20-year upward departure above Guideline range) for a man convicted of creating and disseminating chld pornography featuring his nine-year-old daughter, on the ground that the district court failed to provide notice that it was considering an upward departure. See U.S. v. Gilmore, 2006 WL 3530539.
12.19.2006 3:51pm
another anonVCfan:
Yick. There are times I regret being against capital punishment.

Agreed. Similarly, there are times I regret not believing in Hell. No earthly punishment seems sufficient for this woman.
12.19.2006 4:04pm
anonVCfan:
Mr. Dillon, regardless of what one thinks the ultimate punishment should be, these people do have procedural rights.
12.19.2006 4:13pm
James Dillon (mail):
anonVCfan,

Did I suggest otherwise? I don't believe I took a position on the wisdom of the Second Circuit's ruling in my last comment, I simply cited it as an interesting comparison to the Eighth Circuit's opinion.

That said, I do think it's questionable whether the court's obligation to inform a defendant that it is considering imposing a non-guidelines sentence imposed by Fed. R. Crim. P. 32 should survive in the post-Booker world of advisory guidelines. If the district court is no longer bound to apply the guidelines, then what's the point of informing a defendant that the court might impose a sentence higher than the guideline range. Another interesting wrinkle in the Gilmore case is that the statutory minimum for the offense in question was 15 years, which itself was above the 121-month maximum range suggested by the guidelines. Therefore one might wonder whether the defendant could possibly have had a reasonable expectation that he would be sentenced within the guidelines range.
12.19.2006 4:17pm
Philistine (mail):
Of course, the difference between Gilmore and the in the article is that in the Article, the 8th Circuit essentially told the District Court to resentence to more time, whereas in Gilmore, they told the District Court to tell the Defendant on resentencing if he would be resentenced in excess of the guidelines. I'd expect the same 30 year sentence in Gilmore, and also that it would upheld if appealed.
12.19.2006 4:26pm
Spartacus (www):

"DDG:
Wow. I'd be perfectly comfortable with capital punishment for this. In fact, I'd be perfectly comfortable with hanging, drawing and quartering. Or perhaps burning at the stake. Darn 8th Amendment."

You mean, darn Coker and the living Constitution--the original intent of the eighth certainly supports capital punishment for such a crime. As Scalia pointed out in Roper, at teh time of the Ratification of the BOR, an 8 year old could be hanged for horse theft.
12.19.2006 4:42pm
Realist Liberal:
This is the type of case that makes me think that all prisoners should have their prison number on one side of their shirt and the crime they are in prison for on the other side of their shirt. I cannot imagine anything more despicable than what this woman did.
12.19.2006 4:42pm
Hans Bader (mail):
The defendant deserves a longer prison sentence. Her short sentence probably reflected her gender, and judicial gender bias.

It's a good thing this case was argued before the Eighth Circuit, rather than in California, where crime is excused when the defendant claims she was pressured into it by her male lover.

In California, an appeals court just overturned a woman's conviction for assisting in a murder of an innocent third party, because the woman claimed that "battered woman's syndrome" contributed to her going along with the murder she committed along with her psychologically-abusive lover. (See In re Habeas Petition of Ny Nourn (California Court of Appeal, December 2006)).

(Contrary to its name, battered woman's syndrome does not require evidence of battering. It has been defined so broadly that it can be based on EITHER physical OR PSYCHOLOGICAL abuse, such as insults that do not rise to the level of "true threats." Moreover, the syndrome has been criticized by many scholars as not being consistent with real-world responses by those who suffer from domestic violence).

Had this case been litigated in California, a clever defense lawyer representing this woman might have been able to get her sentence reduced further by claiming that she was afraid of the rapist (and thus suffered from battered woman syndrome) and let him rape her daughter to appease him.

There is a lot of gender bias in the criminal justice system in favor of female violent criminals.

The federal Bureau of Justice Statistics, in its survey of large urban counties, found that while men who kill their wives without provocation receive an average sentence of 17 years, wives who kill their husbands without provocation receive an average sentence of only 7 years. People who kill their spouses without provocation deserve far more than a meager 7 year sentence -- preferably at least 25 years.
12.19.2006 4:47pm
DDG:
Spartacus:
I was think of the 8th Amendment re: drawing and quartering, etc. But I'm with you on Coker.
12.19.2006 4:49pm
JohnAnnArbor (www):
Tie them both to a stake 50 yards in front of an advancing lava flow at Kilauea.
12.19.2006 4:50pm
DDG:
Hit post too soon. Note that Coker dealt with rape of an adult woman. There still may be room for execution for rape of a child.
12.19.2006 4:52pm
Steve:
I cannot imagine anything more despicable than what this woman did.

Not for nothing, but what the man did was pretty horrible too. I'm not sure I'd want to write an essay on the topic of which of them was more culpable.
12.19.2006 5:08pm
Tek Jansen:
And to think they both won the Person of the Year...
12.19.2006 5:20pm
Jerry (mail):
The federal Bureau of Justice Statistics, in its survey of large urban counties, found that while men who kill their wives without provocation receive an average sentence of 17 years, wives who kill their husbands without provocation receive an average sentence of only 7 years. People who kill their spouses without provocation deserve far more than a meager 7 year sentence -- preferably at least 25 years.

That statistic is pretty barren - my guess would be that most of the women that kill "without provocation" tend to have histories of abuse. Would you be against this as a mitigating factor?

While I have to admit I tend to also be a bit skeptical of "battered woman syndrome" (If a woman kills the person abusing her, doesn't that go completely against the core of the syndrome?), I would say justice is on the side of allowing a history of abuse as being a mitigating factor.
12.19.2006 5:23pm
David M. Nieporent (www):
From the opinion...
It is true Kane has made rehabilitative efforts, which include attending parenting classes, participating in vocational training, and obtaining a GED.
Parenting classes? Was she a student, or a case study? "Everybody: don't do that."
12.19.2006 5:46pm
Houston Lawyer:
Children who live with men who are not their bioligical fathers are at a high risk, especially if mom is not married to the man. My high school biology teacher is in prison for the statutory rape of his live-in girlfriend's daughter. After his conviction, this same live-in girlfriend married him.

I have no doubt that my wife would volunteer to lead the firing squad for this woman.
12.19.2006 5:49pm
Spartacus (www):
":DDG:
[. . . ]There still may be room for execution for rape of a child."

The current Lieut. Gov. of Texas included capital punishment for repeat child sexual offense in his re-election campaign platform. I believe he will attempt to deliver on his promise.
12.19.2006 6:01pm
Spartacus (www):
Or it may have been the Gov., or both.
12.19.2006 6:02pm
Spartacus (www):
12.19.2006 6:04pm
Realist Liberal:

I cannot imagine anything more despicable than what this woman did.

Not for nothing, but what the man did was pretty horrible too. I'm not sure I'd want to write an essay on the topic of which of them was more culpable.


I agree that what the man did was pretty horrible but I would argue that what the woman did was even worse. As parents we (and I say we because I have a 3 year old daughter and a 1 year old son) have a responsibility to do everything in our power to protect our children.
12.19.2006 6:51pm
Dave N (mail):
Realist Liberal's comment reminds me of an ethical question someone posed once: "In the children's story Hansel and Gretel who was the most evil character?"

While the witch and the step-mother both got plenty of votes, the ethicist argued (and I agreed) that the most evil person in the story was the father--because he allowed the evil to happen to his children and did little or nothing to protect them.
12.19.2006 8:27pm
Malvolio:
I agree that what the man did was pretty horrible but I would argue that what the woman did was even worse. As parents we (and I say we because I have a 3 year old daughter and a 1 year old son) have a responsibility to do everything in our power to protect our children.
There used to be a crime called petty treason, which meant disloyalty to someone other than the king to whom loyalty was due (a spouse, a superior). This is sort of the same thing -- 200 charges of rape and 200 charges of failing to protect your kid. 15 years on each charge and she'll be out in 6000 years.
12.19.2006 8:33pm
Malvolio:
And then there's this (from the decision):
Here, both Champion and Kane had a base offense level of 37. Champion received a three-level reduction for acceptance of responsibility, reducing his offense level to 34. Kane was not entitled to receive this three-level reduction because she went to trial and challenged her guilt.
Is this really Constitutional? I realize that mechanics of plea-bargaining -- unfortunately but inevitably -- often creates a de facto penalty for going to trial, but a de jure 10% addition to a sentence just seems wrong, wrong, wrong.
12.19.2006 8:41pm
PersonFromPorlock:

...she went to trial and challenged her guilt.

Odd construction. How could she 'challenge her guilt' by insisting on a trial when that guilt was legally nonexistent until the trial established it? There's more than a hint of 'accused equals guilty', here.

Not that it couldn't happen to a more deserving person, but still....
12.19.2006 9:07pm
Respondent (mail):
Punishing child molestaters with death reduces the incentive not to kill the victims, and also punishes the perpetrator disproportionately- the remainder of the victim's life may be horrible, but the victim still has a life remaining. Furthermore, I bet you the victim's life is still much better than the life of someone intentionally paralyzed from the waste down- but I've never heard an argument for capital punishment in such a case. It also needs to be considered that, due to the horror of the charges, prosecutors are very quick to prosecute and jurors are very quick to convict anyone remotely accused of such a crime. The potential innocence argument against the death penalty therefore plays an extra special role here. (I'm reminded of a recent case where a Seattle teacher was convicted of child molestation, and a newspaper investigation revealed that many of the claims made by the government in support of their case were probably false- other teachers said the man could never have been alone in the room with the boys, the prosecutor was mistaken about the setup of the classrooms et cetera... Nevertheless, the prosecutor made a statement along the lines of "I will never, ever apologize for bringing a child molestor to justice." Such a statement could only be made with an audience dull enough not to be able to see thru it the material unfairness of applying a standard of proof of virtually zero to a case of this type.) In any event if the Supreme Court ever upholds a death sentence for a crime of this sort (and already someone in Louisiana has been sentenced to death under a statute providing for death for child rape), it will be because of a change in the composition of justices, not because it's really consistent with Coker . The reasoning behind the opinion (which the Supreme Court has repeatedly said isn't dicta where it forms an essential part of the logic of the opinion, even when the case could have been resolved more narrowly is such that it wouldn't permit the death penalty for any violent crime with identifiable victims other than murder (I use this phrasing to leave the question of capital punishment for crimes against the state open.)
12.19.2006 10:53pm
Respondent (mail):
Reading over Coker, I see that Justice Powell's opinion presumably leaves open capital punishment for a child rapist, but what I have written still holds true if the prurality's opinion is controlling.
12.20.2006 12:27am
Dave N (mail):
The Sentencing Guidelines do allow a 3 point deduction for "Acceptance of Responsibility." There is caselaw that this reduction can be applicable in limited circumstances even if the defendant pleads "not guilty" and is convicted at trial.

The Sentencing Guidelines recognize that a person showing genuine contrition deserved some consideration at sentencing--which occurs AFTER the person is found guilty either by plea or jury verdict.

Though it might seem unfair to penalize someone who is "actually innocent" at sentencing--the presumption is that the person being sentenced is "actually guilty."
12.20.2006 1:52am
Jerry (mail):
Seems interesting to analyze a death sentence as potentially giving an incentive to kill your victim, without looking at the disincentive to ever commit the crime in the first place.

Problems of jury bias or prosecutors' desire for a conviction can be ameliorated at least partially with evidence code changes. For instance, if the death penalty is a possible punishment, suspend the operation of Fed. R. Evid. 413/414 or its equivalent.

The Seattle case you cite is interesting, I don't personally know it - but it seems that this was more of a shoddy defense than anything else. Why didn't the defense call these teachers who said it was impossible?

I'd also take issue with characterizing emotional scarring in all cases being somehow subordinate to physical consequences. It's easier to discount emotional trauma - there are no apparent outward signs.
12.20.2006 4:08am
American Psikhushka (mail) (www):
(I'm reminded of a recent case where a Seattle teacher was convicted of child molestation, and a newspaper investigation revealed that many of the claims made by the government in support of their case were probably false- other teachers said the man could never have been alone in the room with the boys, the prosecutor was mistaken about the setup of the classrooms et cetera... Nevertheless, the prosecutor made a statement along the lines of "I will never, ever apologize for bringing a child molestor to justice." Such a statement could only be made with an audience dull enough not to be able to see thru it the material unfairness of applying a standard of proof of virtually zero to a case of this type.)

If we're going to have a death penalty, it should be enabled for knowingly incompetent prosecutors like this. Especially those concealing exculpatory evidence. A prosecutor or even a judge that has this much disregard for the life, freedom, or rights of a likely innocent person is no different from a murderer, child molestor, or rapist.
12.20.2006 6:50am
James Dillon (mail):
Dave N,

Can you cite any cases in which the acceptance of responsibility reduction has been applied as you describe? The way I've generally seen it used is under the theory that the purpose of the reduction is to save government and judicial resources by inducing a guilty person to plead guilty soon after their arrest or indictment. I've seen and read a number of cases in which the reduction has been denied, either because the defendant went to trial or pleaded guilty a short time before the trial was set to begin. I'd be interested in seeing cases granting the acceptance of responsibility reduction after a trial and guilty verdict.

PersonFromPorlock,
I think your position is excessively legal-realistic. Surely the court is justified in saying, in retrospect, that Kane was guilty all along, despite having asserted her innocence at trial. While the court of course may not prejudge the issue before the jury has returned a verdict, I don't see anything inappropriate in saying, after the jury has found her guilty, that she was in fact guilty from the beginning.
12.20.2006 9:52am
Spartacus (www):
"if the Supreme Court ever upholds a death sentence for a crime of this sort (and already someone in Louisiana has been sentenced to death under a statute providing for death for child rape), it will be because of a change in the composition of justices, not because it's really consistent with Coker ."

Notwithstanding your later comment, wasn't Coker due to a change in the ocmposition of the justices, and not failthful consistency with what came before Coker, like, say, the original intent of the 8th Amend.? I may be against hanging 8 year olds for horse theft, but that doesn't mean I have to think such a punishment is constitutionally prohibited. Constitutional arguments aside, the question really shoudl be whether this is good policy.
12.20.2006 10:46am
Dave N (mail):
The Sentencing Guideline Manual iteslf states, "In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial." Section 3E1.1, n.2.

The Fourth Circuit held in 1996 that a defendant "could obtain a downward adjustment for acceptance of responsibility, even after putting the government through its burden of proving its case at trial, as long as [the defendant] went to trial to preserve issues unrelated to factual guilt." United States v. Holt, 79 F.3d 14, 17 (4th Cir. 1996).

Similarly, the Fifth Circuit has observed that this Guideline departure "is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." United States v. Sanches-Ruedas, 452 F.3d 409, 414-15 (5th Cir. 2006).

The Ninth Circuit has held that a judge abuses his discretion if his sole basis for denying a reduction is the defendant's insistance on going to trial. United States v. Ochoa-Gaytan, 265 F.3d 837, 842 (9th Cir. 2001).

I hope these cases help.
12.20.2006 10:58am
Russ (mail):
As she did in the other thread, I am waiting for Darcy to come in and announce that justice was served.
12.20.2006 1:29pm
PersonFromPorlock:
James Dillon:

I don't see anything inappropriate in saying, after the jury has found her guilty, that she was in fact guilty from the beginning.

Well, for one thing 'guilt' is a term of art (as I understand it, not being a lawyer) meaning 'pronounced guilty by competent authority'. It has nothing to do with whether someone did or didn't commit a crime. So she wasn't "guilty from the beginning," only from when the verdict was returned.

More to the point, she has a right to force the state to prove its case whether she did the crime or not. For the state to punish her for requiring it to do what the Constitution says it must do is simply the state trying to subvert the Constitution.
12.20.2006 5:58pm
James Dillon (mail):
PersonfromPorlock,

Although the concept of legal guilty may have some idiomatic connotations in certain contexts, I wouldn't go so far as to call it a term of art-- I believe that it generally means exactly what the words appear to mean, that the person in question actually committed the offense. Therefore I think it's just wrong to say that she wasn't guilty from the moment the crime was actually committed. For good reasons, we insist that a person's guilt be determined by trial or by admission before a court can make a legally valid determination that the person actually committed the crime, but it seems a grotesque contortion of language and logic to suggest that a person who commits all of the requisite acts defining a criminal offense with the requisite state of mind is not "guilty" of a crime until a court actually says so. I still think that the court was perfectly justified here in its suggestion that Kane was guilty of the offenses in question from the moment that she participated in the sexual molestation of her daughter, despite the fact that we didn't, for legal purposes, know she was guilty until after her trial.


More to the point, she has a right to force the state to prove its case whether she did the crime or not. For the state to punish her for requiring it to do what the Constitution says it must do is simply the state trying to subvert the Constitution.

I think it's more accurate to say that the acceptance of responsibility reduction rewards a defendant for confessing early, rather than punishing a defendant for insisting that the government prove her guilt at trial. That may seem like mere semantics, but the fact remains that a defendant who goes to trial and is found guilty will be sentenced to the level of punishment that the statute and sentencing guidelines actually recommend/require for an offender of her level, whereas a defendant who accepts responsibility by pleading guilty early will receive a reduced sentence. Since the sentence imposed on a defendant who does not accept responsibility is the baseline, and the acceptence reduction constitutes a departure from that, it's not clear to me that the higher sentence that a defendant convicted at trial would usually face can really be called a "punishment."

In any event, the Constitution does not say that the state "must" prove a criminal defendant guilty at trial. Rather, it gives every defendant a waiveable right to insist that the government meet that burden. Constitutional rights can be, and are, waived in a wide variety of situations, and I don't see anything particularly unseemly about the government's seeking to induce a guilty defendant to waive his or her right to a jury trial by offering reduced charges and/or a lower sentence as concessions for the waiver of that right.
12.20.2006 6:58pm