Earlier this year, the U.S. Supreme Court held that need for rehabilitation is not an appropriate basis for imprisonment. Tapia v. U.S., 131 S.Ct. 2382 (2011).
But a recent opinion from the 7th Circuit shows it is not always easy to determine when a sentence runs afoul of that rule. On Wednesday, the court vacated a sentence and remanded it to the district court to clarify sentencing remarks that it found ambiguous.
When Donald Kubeczko’s mother died, he continued to cash her checks from the Civil Service Retirement System. He collected $158,000 over 12 years in this way.
He was convicted in federal court of mail fraud, and his guideline range was 21 to 27 months. The district court sentenced him to 30 months.
At sentencing, the court noted that Kubeczko had mental health issues, stating, “A stay in the Bureau of Prisons of a significant length is necessary in order for him to get the Bureau of Prisons’ inpatient treatment program.”
Tapia was decided after Kubeczko’s sentencing and the government confessed error on his appeal.
But rather than summarily reverse, the 7th Circuit engaged in a lengthy discussion of the issue, in an opinion by Judge Richard Posner.
The sentencing court stated the only reason Kubeczko had been in custody for 10 months while the case was pending was there was no one who could be a responsible custodian for him. He had been in a Salvation Army halfway house, but was involuntarily removed for behavior problems.
The 7th Circuit found these remarks could be interpreted to mean the district court considered Kubeczko too dangerous to be left at large until his mental illness was brought under control, which would be a permissible reason for a longer sentence.
The court posited two hypothetical sentencing statements.
• In one, the judge says, “I’m not worried that you’ll commit more crimes if I gave you a shorter sentence; I am giving you a long sentence to enable you to obtain psychiatric assistance that will bring about your complete rehabilitation.”
• In the second, the judge says, “I am going to sentence you to a sentence long enough to enable you to obtain psychiatric assistance, because until then you will continue to be a danger to the public because you can’t control your violent impulses.”
Distinguishing the two statements, Posner wrote, “The first ground for a longer sentence violates the statute, but the second does not, because incapacitation (physically preventing the defendant from committing crimes on ‘the outside,’ by imprisoning him) is an authorized factor for a judge to consider in determining the length of a prison sentence.”
Posner went on to say, “The need for incapacitation might be rooted in mental problems that could be alleviated by treatment. The mental problems themselves, and the possibility that the defendant would benefit from treatment that he could obtain by an extended prison term, would be inadmissible considerations; but the fact that his mental problems made him more dangerous could justify a longer sentence without running afoul of section 3582(a).”
In Kubeczko’s case, however, the court found the sentencing judge’s remarks ambiguous. Accordingly, the court remanded the case for the district court to consider this issue.
But before concluding, the court suggested an alternative approach — imposing the lower sentence, and deferring a decision on the defendant’s danger to the community until release, because a prisoner who cannot safely be released can be civilly committed by the judge pursuant to 18 U.S.C. 4248(d).
Posner advised, “The difficulty of predicting a defendant’s mental status when he is released makes this approach advisable in many cases, especially when the sentence is long, which increases the difficulty of prediction.”
The opinion is valuable for its explanation of when mental illness is and is not a permissible basis for incarceration.
However, the concluding dicta is highly misleading.
The statute the court discusses, 18 U.S.C. 4248(d), does allow for civil commitment of prisoners after they have completed their prison terms, if they remain dangerous to the community.
However, it applies only to offenders found by the court to be “sexually dangerous,” not just dangerous in general.
Kubeczko, the defendant in this case, was convicted of cashing his deceased mother’s retirement checks for his own use. There was some discussion of “sexual ideations” at the sentencing hearing, but it is not clear that he could be committed under this statute.
So, however thoughtful the rest of the opinion may be, the court’s suggestion on this score should not be followed in cases not involving sexual abuse.