Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing

The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation.  So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively?  Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months.  (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.)  In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant.  However, the judge did not mention the Note 2(B) factors.  This, the Seventh Circuit held, was plain error.  

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Is Wisconsin Ready for Another Sentencing Commission?

Wisconsin has already had two sentencing commissions, now both defunct.  Is it time to think about a third?  Sentencing commissions have proven their worth over the long haul in a number of other states, including Minnesota, North Carolina, and Virginia.  A successful sentencing commission promulgates guidelines that channel judicial sentencing discretion and reduce sentencing disparities, collects and analyzes sentencing data in order to support evidence-based decision making, and provides information and recommendations to the legislature than can help to blunt some of the political system’s tendencies to excessive harshness.  Although it is certainly not cost-free, a good commission may ultimately save the state far more than is required to fund its operations.

With these considerations in mind, the latest edition of the Marquette University Law School Poll asked respondents their views of commissions and of judicial sentencing discretion.  (For my earlier posts on the Poll, see here and here.)  The results indicate that there is substantial support for a commission, but that Wisconsinites also appreciate what their locally elected judges bring to the table as sentencers.  

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Should This Man Go Free?

Today’s New York Times Sunday magazine contains a fascinating article about Greg Ousley, a 33-year-old Indiana man who is in prison for killing his parents when he was 14 years old.  Journalist Scott Anderson reports that Greg is serving a 60-year sentence, with no possibility of parole until 2019. However, Greg’s appeals lawyer is pursuing a sentence modification procedure, which could potentially allow him to be released early if none of the victims’ next of kin object. Of the seven relatives in question – his two sisters and five aunts and uncles – only one aunt objects to the early parole. This is enough to derail the process for now, despite the fact that prison officials think Greg has been rehabilitated since he has been a model prisoner for years and has earned both a high school equivalency certificate and a college degree (magna cum laude) while in prison.

As Anderson points out in his article, parricide is a fairly rare crime, and the killing of both parents is rarer still. Most of the cases seem to involve severe physical or sexual abuse of the child-turned-killer. Greg Ousley’s case is more nuanced. He appears not to have been severely abused, although his parents clearly had issues and few would nominate them for parents of the year – at least if Greg’s version is to be believed. Greg’s dad had a fairly serious drinking problem, his mother (who had been orphaned at a young age) had abandonment issues and was prone to rages in which she verbally abused her children. Apparently neither parent was good at verbally expressing either love or empathy. Greg was angry at his parents for the way they treated him, and he was especially angry at his mother after he found her in the garage kissing his father’s best friend. Greg was also severely depressed. Both a middle school teacher and Greg’s mother seem to have recognized this, but their somewhat modest efforts to address the issue with Greg were rebuffed, and they did not pursue the conversation further. At some point Greg decided to kill his parents, he wrote about it in his journal, he told his friends that he would kill his parents, and ultimately he shot both his father and mother at point-blank range with a 12-gauge shotgun. Ironically, he did it on a night that he now remembers as a night when his parents reached out to him in a positive way, and the three had spent the evening playing guitar and singing at home.

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