Crime, Sentencing Law

The Crapshoot Of Sentencing Laws

Need an example of the absurdity of our sentencing laws? A woman with stage IV breast cancer was recently sentenced to 75 years in jail.

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Let’s say you commit a crime in Texas, then travel to New York and commit the same crime two weeks later.  If you’re arrested, it’s clear you could be prosecuted in both states for the two separate crimes. What most people don’t realize, though, is that the sentence you get in each state could wildly differ.

Selling a small bag of heroin in New York City merits probation (depending on your criminal record), but selling that same amount in Texas could land you in jail for years.  Not only do sentencing ranges change from state to state, but a large part of how you’re punished depends on the crapshoot of who happens to be your judge.

This discrepancy holds as true in federal court as is does in state court.  Some districts and circuits are known as tough punishers, and others are not.  Some judges have particular pet peeves and might punish a defendant especially harshly for, let’s say, narcotics, but go easier on someone accused of fraud.  The judge in the next chamber might do the opposite — they see white-collar crime as public enemy No. 1, not drug selling.

Recently a federal judge in the Southern District of Texas gave a particularly (some would even say, ridiculously) tough sentence to a 53-year-old defendant found guilty of Medicare fraud.  Marie Neba, a mom of seven-year-old twins who was stricken with stage IV metastatic breast cancer, was sentenced in August to 75 years in jail!

Neba is presently going through chemotherapy.  Her cancer has spread to her lungs and bones, yet the judge, Melina Harmon, had the nerve to tell her during sentencing, “I am not a heartless person. I think I am not. I hope I am not. It must be a terrible experience that you are going through, Ms. Neba, and I don’t want you to think that by sentencing you to what I am going to sentence you to that I’m trying to heap more difficulties on you because I am not. … It’s just the way the system works, the way the law works. You have been found guilty of a number of counts by a jury, and this is what happens.”

Not trying to “heap more difficulties” on her? What world does she live in.  Yes, Neba was found guilty of bilking Medicare of a huge amount of money — 13 million dollars.  But even the government was recommending less time — 35 years instead of 75.  Some might say that 35 is already excessive for a middle-aged woman with stage IV cancer, but Judge Harmon went above and beyond the request and made sure Neba not only dies in jail, but dies with the knowledge that she was given one of the longest sentences ever imposed on anyone in the country for this type of crime.

According to an article in the National Law Journal, Neba’s sentence breaks the record for Medicare-fraud sentencing by 25 years. Furthermore, Neba’s crime, while bad, wasn’t as bad as they get. Yes, she stiffed Medicare (and thereby all of us honest taxpayers), but she didn’t, for example, prescribe and administer chemotherapy treatments to healthy patients as did a Detroit doctor in 2015.  He got only 45 years.

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Neither was she leading a $205 million Medicare scheme that defrauded patients with dementia and substance abuse as did a Miami-area health care director who got 50 years.  By the way, neither of these defendants were dying of cancer on the date of their sentences.

The federal guidelines for sentencing have not been mandatory since 2007.  Still, the judges always start there.  The guidelines present a complex labyrinth of additions and subtractions to base numbers so that the ultimate range can reach into numbers that exceed anyone’s lifetime. Factors considered include:  the defendant’s role in the crime; whether he used sophisticated means; the number of victims; and the amount of loss.

They also add points for going to trial.  While it’s every defendant’s “right” to have a trial, the painful reality is that anyone who invokes that right and loses gets punished more harshly than if he’d just pleaded guilty.  The feds rationalize it by denying the defendant the possibility of a three-point reduction in his final sentencing score because he failed to “accept responsibility.”  (He obviously didn’t do that if he went to trial.)  The states, however, don’t bother justifying it mathematically.  They do it ad hoc, to teach the guy a lesson: You gummed up the process by testing the government’s case, now you’re going to suffer for it.

Neba got handed every sentence enhancement in the book — and then adding insult to injury, the judge heaped the sentences back to back, or consecutively, for each charge.

The sentencing guidelines were formulated to try and even out the uneven hand of dispensing punishment.  Yet because the guideline calculations are way out of kilter with what’s fair or appropriate, judges still have the ability to justify their inhumane results.  Someone in Texas gets 75 years for a crime that in New York might have only got him 15.

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Neba will appeal her sentence.  Let’s hope she lives long enough to hear it get reduced.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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