Thursday, April 27, 2006

More on the tire slashing verdicts

Seth Zlochota has been arguing in the comments section to my earlier post that Judge Brennan was wrong to sentence the defendants "as if" they had comitted voter suppression when all they had done was some property damage. Because I think he's probably not the only one to think this, I thought I'd explain in a new post why this is not problematic.

In taking into account the defendants' motive, Brennan did not sentence them "as if" they had committed a more serious crime. Sec. 12.09 of the statutes governs the use of "abduction, duress or any fraudulent device or contrivance" to prevent someone from voting. I don't know that it would have been possible to convict the defendants of that and that is probably why they weren't charged with it, but, if they had been convicted of that, it would have been class I felony calling for up to three years and six months in prison. Obviously, the judge did not sentence them "as if" they had been convicted of this. He handed out sentences ranging from four to six months which is within the range permitted for the charge they pled to. (In fact, he could have given them more.)

Even if you draw an analogy to other forms of prohibted interference with an election, many are felonies and all permit at least six months incarceration.

Seth seems to think that the judge has to ignore the circumstances surrounding the crime. There is absolutely no legal principle that requires that. The fact that there is a more serious charge available for a type of vote suppression which arguably did not occur here, does not mean that the defendants' motive - which was to prevent voting - cannot be taken into account in deciding where within the range of sentences which are permitted for the lesser charge of property damage the sentences should fall.

The other thing I have been hearing (not from Seth) is that it was wrong for the judge to reject the plea deal and he in some way sandbagged the defendants by doing so. While judges accept those deals more often than not, it is far from unheard of for them not to do so. In fact, Brennan told the defendants (as every judge does every time someone pleads guilty or no contest) that he was not bound by agreement and might sentence them to more.

When you slash tires to prevent people from getting to the polls in a presidential election in a state where the last presidential contest was decided by a handful of votes, you ought not be surprised that a judge thinks you shouldn't just walk away.


Seth Zlotocha said...

Nice spin work, Rick.

But the only reason Brennan gave for ignoring the plea bargain was because the men supposedly engaged in voter suppression.

As you point out, it probably wouldn't have been possible to convict the defendants of voter suppression, which is why they weren't charged with it.

Apparently that didn't matter, though. Brennan tried that case from his bench, anyway. And it scored him the political points he wanted. Justice Brennan just roles off the tongue, doesn't it?

And I take all this support you're giving to the consideration of the context surrounding crimes as evidence that you likely support the institution of hate crimes. A good number of conservatives don't think it's right to charge someone with a hate crime because it's not the actual crime that took place. Buy, hey, we need to consider context, right?

Rick Esenberg said...


You are missing the point. Voter surpression (its actually called "Election Threats") is a felony and gets you more jail time. Brennan did not - and could not - "try that case."

But that doesn't mean that property damage is not a more serious crime when it is done to interfere with the electoral process than when it does not and, therefore, warrants something on the higher end of the penalties that are permitted for misdomeanor property damage.

As far as hate crime enhancers, that's an entirely different issue. They don't call for a higher sentence within the normal range; they authorize going beyond that range. I don't think it's appropriate to pick out some forms of malice and hold them above others.

That doesn't mean that a crime that is motivated by racial animus might be more brutal or more wanton or less comprehensible and justify a longer sentence within the permissable range.

As far as the Justice Brennan thing, I have known Mike for a long time. He was one of my associates at Foley & Lardner. He is a smart, diligent and fair-minded guy. If you knew him, you would not think he was making a political point. You can disagree with what he did, but there is no doubt in my mind that he thought it was the right thing to do.

His approach to the law is much like mine (i.e., correct!) so it's not surprising I'd think he'd make a good justice. Just like, notwithstanding Spivak & Bice, it was not surprising - or a matter of currying favor- that I have written complementary things about Judge Sykes. Our views on the law are similar.

Seth Zlotocha said...

You're right, I don't know Mike. My dad, who is an attorney, does know him and has cases before him fairly often. He thinks Brennan's an excellent judge, and he also thinks he made the right decision in the tire slashing case. (He's also a conservative.)

But even my dad admits that politics played a role in Brennan's sentencing. He's an elected officials who very likely has aspirations to move on to a higher level.

He didn't mention those citizen letters for nothing.