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Sentence Lax According To Guidelines

Publication Date: 
July 16, 2014
Source: 
The New Orleans Advocate
Author: 
Gordon Russell

Professor Robert Weisberg comments on the recent sentencing of former New Orleans Mayor Ray Nagin for The New Orleans Advocate. 

Most legal observers agree that U.S. District Judge Ginger Berrigan cut former Mayor Ray Nagin a big break Wednesday when she sentenced him to 10 years in a federal penitentiary, more than five years fewer than the low end of what federal sentencing guidelines dictated for his crimes.

It wasn’t that they were surprised Berrigan showed the former mayor some mercy. She’s generally viewed as the most liberal jurist on the federal bench in New Orleans, and she tends to hew less closely to the sentencing guidelines than do some of her colleagues.

...

On that point, Robert Weisberg, a law professor at Stanford University and an expert on sentencing guidelines, said he found some of Berrigan’s reasons for a more lenient sentence suspect. And though the reasons do not necessarily create legal precedent, they might well be cited or noted by other judges, creating precedent “in kind of a normative way,” he said.

Among Berrigan’s questionable reasons, in Weisberg’s view: her contention that, at 58, Nagin is older than most criminals whom sentencing guidelines are meant to deter from future crimes and her view that Nagin has been so thoroughly discredited that he’s unlikely ever to regain a position of public trust.

“You see older guys than him getting 20-year sentences for similar crimes, and in those cases, it becomes a life sentence,” Weisberg said. “But 58 is really not that old. And the argument that he will never again enjoy the public’s trust is an odd one. That’s true of almost anyone in this predicament. It’s kind of a double-counting. It’s pretty dubious — presumably anyone busted for a serious crime like that would be precluded from running for office.”

...

“There’s the entire human race, and then there’s Edwin Edwards,” Weisberg said. “And there’s (former Providence, Rhode Island, Mayor) Buddy Cianci,” who is also making a bid for his old job after a prison stint. “But they are outlier characters.”

Weisberg also thinks the sheer scale of the departure Berrigan granted — giving Nagin 36 percent less time than the low end of the guidelines — will factor into the solicitor general’s thinking.

“Departures are OK, but this was a large departure,” he said. “I’d say it’s 50-50 whether they appeal.”

...

“I don’t think she could have gone any lower,” he said. “She gave a one-third reduction to a guy who never accepted any responsibility. The solicitor general may think she went overboard.”

If an appeal is filed, Fanning thinks there’s a decent chance the conservative-leaning appellate court could overturn the sentence. “I think they got a real shot in the 5th Circuit,” he said.