Deterrence Case Analysis

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The court’s discussion of marginal deterrence creates an intracircuit split, which the panel inexplicably fails to acknowledge.

Beier’s argument had support in prior precedent, U.S. v. Newsom, 402 F.3d 780 (7th Cir. 2005). The court acknowledged the case, but failed to discuss it in any way.

Newsom, like Beier, was convicted of child pornography offenses, and received 324 months, just short of the 360 month maximum that Beier received.

The court did not call the sentence unreasonable, but issued a Paladino remand, which included the following suggestion:

“As we noted, the result of the application of the Guidelines was a sentence of 324 months’ imprisonment, or 27 years. Those who think that the idea of marginal deterrence should play some part in criminal sentences — that is, that the harshest sentences should be reserved for the most culpable behavior — might find little room left above Newsom’s sentence for the child abuser who physically harms his victim, who abuses many different children, or who in other ways inflicts greater harm on his victims and society (cites omitted).”

For the reasons given by the court in the case at bar, the principle of marginal deterrence (as that term is used by economists, at least) does not apply to this case, and Beier’s argument that it does apply misunderstands the principle. The court in Newsom also misunderstood the principle.

However, given the language in Newsom, Beier was on solid footing in arguing that marginal deterrence did support a lower sentence.

At least one lower court in Wisconsin has already relied on the dicta in Newsom.

Citing Newsom, Judge Lynn Adelman observed that the Seventh Circuit has stated that statutory maximums should be reserved for the worst offenders.

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Judge Adelman also cited U.S. v. Lister, 432 F.3d 754, 762 (7th Cir. 2005), in which the Seventh Circuit stated that a near-maximum sentence “leaves little room for the proportional sentencing that motivated Congress to pass the sentencing guidelines, a motivation recognized and supported by the Supreme Court’s second holding of Booker. Booker, 125 S.Ct. at 767-68 (citing U.S.S.G. § 1A1.1 application note).”

In the wake of the decision in the case at bar, attorneys and lower courts face the following dilemma: the court is correct in the case at bar that the principle of marginal deterrence is inapplicable in these cases; but the court fails to distinguish binding precedent stating that maximum sentences should be reserved for the worst offenders.

Accordingly, attorneys whose clients’ guideline ranges are at or near the statutory maximum, but who could have engaged in much worse conduct and still get the same sentence, would be wise to avoid using the term “marginal deterrence” and avoid citing Newsom. That may only get you an economics lesson from Judge Posner.

Instead, attorneys should cite Lister and speak of “proportional sentencing.” The court could still renounce proportional sentencing, but it will at least force the court to squarely acknowledge the split in authority.

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David Ziemer can be reached by email.