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Hard time

Juanita Myrick had a pretty good gig going.  She worked for the Cuyahoga County Department of Employment and Family Services for 17 years.  For 14 of them, she used her position to issue herself checks -- 759 of them in all -- for public assistance benefits she wasn't entitled to.  All good things come to an end, and Juanita's did in early 2007, when an audit uncovered her fraud.  A year later she pled guilty to one count of 2nd-degree felony theft, two third-degree felony counts of tampering with records, and 23 other 4th- and 5th-degree felony counts of identity theft and unauthorized use of a computer. 

And last week, in State v. Myrick, the 8th District upheld her sentence of 20½ years in prison.

A reading of the opinion demonstrates the utter futility of appellate review of sentences.  The court notes the many post-Foster cases holding that trial judges have "full discretion to impose a prison sentence within the statutory range," and it's pretty much a downhill glide from there. 

First up we have the recidivism and seriousness factors, which a judge is required to consider, but if there's nothing on that in the record, we'll presume that she considered them.  That's pretty much an irrebuttable presumption;  the only way to overcome it is if the judge is foolish enough to say that she didn't consider them.  And the appellate court is going to limit its review to whether the judge considered the factors, not the soundness of her application of them. 

The problem with this is that the factors are so vague and broad that virtually any result can be justified.  Here, for example, the judge found two factors (holding a position of trust, and using her occupation to commit the offense) counted against Myrick, and two (remorse, willingness to use her retirement account to pay restitution) counted for her.  The lack of a prior felony record for a 44-year-old woman arguably should have counted for something, and one could argue that there was little need to protect the public from Myrick's future crimes:  she certainly wasn't going to be returning to the job which allowed her to commit them.  The problem is that those are just that:  arguments.  There's nothing to indicate that one factor should be given any more weight than another, and the expansiveness of the abuse-of-discretion standard insulates virtually any decision from review.

When we get to the court's discussion of the disproportionality, we come to a true understanding of just how Herculean a defendant's task of reversing a sentence becomes.  The court relies on an 11th District decision on how proportionality review is to be conducted:

a consistent sentence is not derived from a case-by-case comparison; rather, it is the trial court's proper application of the statutory sentencing guidelines that ensures consistency.

That logic, of course, reads proportionality review completely out of the picture:  as long as the judge considers the seriousness and recidivism factors (and unless she takes pains to say she didn't, we'll assume she did), regardless of how she weights those factors, the sentence is proportional, even if it exceeds what every other similarly-situated defendant has gotten.

That's another problem:  what's a "similarly-situated" defendant?  The opinion notes that Myrick's lawyers presented a list of cases at sentencing of similar offenders and the sentences they'd received, and the appellate court is as dismissive of that effort as the trial court was. 

These cases included one where a defendant pleaded guilty to only one third degree felony; one where a defendant was convicted of driving while under the influence; one where a defendant stole different amounts of money; and one where there were felonies of different degrees. In other words, the trial judge found that none of the alleged similar cases were actually similar at all.

Well, not quite.  The first case mentioned was that of Colleen Kempf, which I'd mentioned last week:  she had used her position as bookkeeper to steal some $500,000 from a private Catholic girls' school.  To be sure, Kempf was allowed to plead to an information charging only a single third-degree felony, but the classification of the offense is secondary:  using your position to steal a half-million from a private girls school doesn't seem very dissimilar from using your position to steal three-quarters of a million from the government, and it's difficult to argue that any dissimilarities warrant a sentence five times greater than the four years imprisonment that Kempf got.  Or the three years that Joanne Schneider recently got for running a Ponzi scheme that swindled investors out of $60 million.  Or the seven years that Frank Gruttadauria got for running a stock fraud scheme that cost investors $125 million. 

For that matter, why are we are limiting the discussion to theft cases?  The drunk driving case the court refers to was that of Robbie Moore, which I discussed back here.  Moore drove drunk the wrong way on I-71 and killed two people, and was sentenced to maximum, consecutive 10 year sentences.   That sentence was reversed as being disproportionate, and Moore was eventually given sixteen years, four less than Myrick got.  Is what Myrick did worse than killing two people?  Worse than rape or robbing somebody at gunpoint, each of which would have netted the offender less than half the sentence that Myrick got?

Odd as this may sound, this isn't to criticize the trial judge.  Yes, I believe it's an overly harsh sentence, but that's my own proclivities coming out; the judge has different ones, and she's entitled to them.  She acted within her prerogative, and did nothing wrong.

But that's part of the problem.  Of the 34 judges on the Common Pleas bench here, there are probably no more than three or four who would have handed down a similar sentence; the vast majority of the rest would have given one from one-quarter to one-half of what Myrick got.  And some less than that.

There's an inevitable tension between giving judge sentencing discretion, and ensuring some consistency in sentencing.  As the Federal courts found out, you want to give judges the opportunity to fashion sentences which take into consideration individual circumstances.  At the same time, you don't want people to have the impression that the outcome of their case hinges almost entirely upon the name the computer in the arraignment room spits out as the judge assigned to the case.  What we have in Ohio right now, especially in large counties, is the latter.

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