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Public Pressure Leads to Longer Sentence

By TChris, Section Crime in the News
Posted on Thu Jan 26, 2006 at 09:13:44 AM EST
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by TChris

Judge Edward Cashman caved to public pressure, increasing the sentence he imposed on a sex offender from 60 days to 3 to 10 years. Recognizing that society becomes more safe if we treat sex offenders, and that treatment in the community is more immediate, more readily available, and more effective than treatment behind bars, Judge Cashman initially imposed a sentence with that reality in mind. The subtleties of sentencing were lost on the "lock 'em up" crowd, who belittled Judge Cashman for his perceived leniency:

Ever since, he's been vilified by television commentators, bloggers and even the governor who say he was too light on the crime. ...

After Cashman announced the sentence, Gov. James Douglas called for the judge to resign and several lawmakers suggested he be impeached. On FOX News, Bill O'Reilly told viewers as video of Cashman rolled: "You may be looking at the worst judge in the USA."

Judges are supposed to rule without regard to public sentiment. Justice does not depend on opinion polls or on the views of Bill O'Reilly. Mark Kaplan, Hulett's lawyer, said it all:

"The sentence in this case may not be popular, but the court cannot be swayed by the media or the mob," he wrote in court papers.

The court was swayed, protections against double jeopardy notwithstanding.

Judge Cashman initially recognized his obligation to think independently.

In a Jan. 12 memorandum, Cashman appeared unswayed, writing: "To change my decision now, however, simply because of some negative sentiment, would be wrong."

Indeed. Judge Cashman had it right the first time. It's a sad day when a judge allows public pressure to dictate a sentence, and even sadder when a defendant's sentence is increased because politicians and blowhards like Bill O'Reilly haul out their tired "soft on crime" rhetoric.

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    Public Pressure Leads to Longer Sentence | 15 comments (15 topical)
    Re: Public Pressure Leads to Longer Sentence (none / 0) (#1)
    by Lww on Thu Jan 26, 2006 at 10:15:33 AM EST
    "Judge Cashman had it right the first time." Sixty days in jail is "right" for someone who repeatedly rapes a six yr old girl? Absolutely disgraceful. All this hand-wringing over the pressure brought to bear on the judge to give some justice to this child is also disgraceful. I'm sure if the pressure had been for leniency and the good judge let this dirtbag walk you'd be applauding him for his "courage."

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#2)
    by Punchy on Thu Jan 26, 2006 at 10:32:15 AM EST
    Help--Someone, please explain to me how this is done: Judge gives a sentence (yes, far too light...not my point). Defendant and defense counsel agree with it (I'm assuming). Then, 3 weeks later, the Judge suddenly says "Whoa...whoops, nevermind...make that sentence ten times longer". How in the world, AFTER the case is finished, can a judge go back and suddenly change the sentence. In this case, the result is a good thing. But the process is frightening--that a Judge will bend to outside pressure, and is allowed to use outside influence instead of experience/precedent to instantly reverse the original sentence? Has this been done before? Is it common?

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#3)
    by Talkleft Visitor on Thu Jan 26, 2006 at 10:36:32 AM EST
    Cashman said in court documents filed Tuesday that he would have required more jail time for Hulett if he could have received sex offender treatment in jail.
    He was right the first time. LWW: Sixty days in jail is "right" for someone who repeatedly rapes a six yr old girl? Don't tell me you're going to get all eye-for-an-eye on this one?

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#4)
    by roy on Thu Jan 26, 2006 at 10:55:48 AM EST
    Recognizing that society becomes more safe if we treat sex offenders, and that treatment in the community is more immediate, more readily available, and more effective than treatment behind bars, Judge Cashman initially imposed a sentence with that reality in mind.
    As I understand it, treatment after prison is optional. Not part of the sentence. If that's the case, it undermines the judge's claim about the rapist getting treatment. The rapist already had treatment available. He could have walked into a therapists office, said "I'd like to stop raping children" and recieved plenty of attention. I see the point about sentences not being subject to public opinion. That's how the system's supposed to work. But the 60-day / no mandatory treatment sentence was a bad thing that slipped through a good system, not a success story.

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#5)
    by sarcastic unnamed one on Thu Jan 26, 2006 at 12:32:44 PM EST
    TL I wonder if there's been some confusion. I had mistakenly posted a comment about this topic on the Abbe Lowell thread. Realizing that I had mistakenly cross-posted it there, I then posted a second comment on that thread asking you to delete the mistaken comment. (I thought it clear that I meant to delete it from the Lowell thread.) Then I posted that comment, correctly, here on this thread. Now I find my comment deleted from this, its correct thread, and still in existance on the incorrect Abbe Lowell thread. Anyway, I'm happy to repost the comment here, if you'd like, although I realize you may be somewhat miffed at my pointing out in my comment that TChris is presenting his personal interpretations as fact. Ah well, most of what I said regarding the topic has since been covered in other's posts above, so my comment would probably just be duplication now...

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#6)
    by Lww on Thu Jan 26, 2006 at 02:37:09 PM EST
    Tchris, I want to know, do you think sixty days in jail is a proper sentence for someone who rapes a six yr old repeatedly? Tell us.

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#7)
    by TChris on Thu Jan 26, 2006 at 03:13:22 PM EST
    The "it" in "had it right" refers to the judge's immediately preceding comment. Whether a sentence is fair or reasonable depends upon a large constellation of factors, and I'm not in a position to second-guess the judge's unpressured decision without having access to quite a bit of additional information about the crime and the offender.

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#8)
    by Liberal Heart on Thu Jan 26, 2006 at 04:01:03 PM EST
    As I understand it, the shorter sentence was given because the judge wanted the guy to get therapy and that would not have been available until the end of his sentence and the judge didn't want to delay it. The reason he has now lengthened the sentence is not related to the public pressure, but is the result of a deal that was worked out whereby the guy could get therapy while serving his sentence.

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#9)
    by Sailor on Thu Jan 26, 2006 at 05:01:19 PM EST
    LWW, until you follow the links, you really can't comment intelligently on this topic. (BTW, I am not saying you are unintelligent, I just think you should have followed the links before opining on their contents.) Follow the links, see what was recommended by the Corrections Department that every judge relies upon:
    At his first sentencing, Cashman said the best way to ensure public safety was to get Hulett out of prison so he could receive sex offender treatment. Because the Corrections Department concluded that Hulett wasn't likely to reoffend, he wouldn't be eligible to receive sex-offender treatment until he reached the end of his jail term.
    So the judge decided that he never would receive treatment until the sentence was done. As I understand it, the DOC have now changed the law, (due to this problem), and he will be treated while in jail. Aside from all of that, how can a sentence be increased after it was already judicially rendered?

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#10)
    by Lww on Thu Jan 26, 2006 at 07:48:29 PM EST
    Sailor, thanks for stating I'm not stupid, real white of ya. Judges reduce or commute sentences all the time, many times under public pressure. What's the difference here? As for this perps not getting treatment; who cares about treatment? This guy, who raped a child for four yrs starting when she was six yrs old shouldn't see the light of day. He's a goner, you have to be kiddin me?

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#11)
    by jimcee on Thu Jan 26, 2006 at 08:36:47 PM EST
    The judge cleary gave the wrong sentence for the right reasons. If the defendent would not receive treatment in the prison system, a treatment that he clearly needed, he should have been sentenced under the appropriate circumstances according to Vermont law. The judge clearly felt he could void the existing laws because he personaly felt that the laws were ineffectual. That is not a judge's job. A judge's job is to render decisions based on the existing laws of his jusisdiction and not try to affect law by his decisions. His primary decision was wrong no matter what one's politics. His secondary decision is what he should have given in the first place but some folks will say O'Reilly stuck his nose in where it didn't belong and brought this decision to the limelight. In hindsight the judge should have sentenced Mr Heulett to the max under state law. After the fact he could have asked honest psychologists although they are few and far between for thier therapy ideas. O'Rielly is an as%sh*ole, But Cashman has him beat by a (Vermont) country mile. Let us all hope that Vermont will toughen thier child abuse laws but at the same time make whatever therapy is available to to these child molesters. Statiscally speaking there is a slim chance of reformation through therapy but a stiff sentence at least keeps everyone safe for a while. By the way, I'm being nice because if that were my daughter I'd be on trial for the death of Mr Heulett, that is if his body had been found.

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#12)
    by Sailor on Fri Jan 27, 2006 at 05:13:08 PM EST
    LWW -
    Sailor, thanks for stating I'm not stupid, real white of ya.
    I think you misunderstood me. Perhaps deliberately. I just thought a more relevant, informed post would have been made if you had followed the link first. And please provide links to where judges have reduced a sentence after they originally sentenced a person. Personal aside: LWW, I know we disagree on most points, but I truly did not intend to insult you in the original post. I just thought there were other considerations that you might not have appreciated if all you read was the change of sentence. Regards, Sailor

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#13)
    by David on Thu Feb 09, 2006 at 03:19:15 AM EST
    This case raise 3 interesting issues: Double jeopardy, waiver, and ineffective assistance of counsel (although the state changed the law after the defendant was sentenced, ex post facto issues aren't raised because the penalty for the crime wasn't changed; they only allowed sex offenders to receive treatment while in prison - it's the judge's resentencing actions that are at issue). At the outset, the Vermont Supreme Court has stated that a judge should be faithful to the law and not be swayed by partisan interests, public clamor or fear of criticism. State v. Rice, 483 A.2d 248 (Vt. 1984). It held that the trial court, in a similar prosecution for lewd and lascivious conduct with nine-year-old child, abused its discretion at the sentence review hearing in ordering an enhanced sentence based in part on public clamor over the original sentence imposed. Id. at 252-53. Vermont state law is quite clear on when a court can resentence a defendant to an increased penalty. Specifically, 13 V.S.A. § 7042 states that: (a) Any court imposing a sentence under the authority of this title, within 90 days of the imposition of that sentence, or within 90 days after entry of any order or judgment of the supreme court upholding a judgment of conviction, may upon its own initiative or motion of the defendant, reduce the sentence. (b) A state's attorney or the attorney general, within seven days of the imposition of a sentence, may file with the sentencing judge a motion to increase, reduce or otherwise modify the sentence. This motion shall set forth reasons why the sentence should be altered. After hearing, the court may confirm, increase, reduce or otherwise modify the sentence. While a court has 90 days in which to reduce a sentence, it has only 7 days in which to increase it. State v. Draper, 712 A.2d 894 (Vt. 1998) (under 13 V.S.A. § 7042, trial court was without authority to increase sentence after seven days from the imposition of the original sentence - in this case, 226 days later). Cf., State v. Boyer, 481 A.2d 15 (Vt. 1984) (following pleas of no contest, sentences properly increased when state moved for reconsideration one day after sentencing hearing). In this case, the court increased the sentence 22 days after the original sentence was imposed. Nonetheless, a double jeopardy claim is one that may be waived by the defendant. State v. Maunsell, 743 A.2d 580 (Vt. 1999); State v. Callahan, 587 A.2d 970 (Vt. 1991); Reporter's Notes to V.R.Cr.P. 12 at 68 (if double jeopardy is not raised either by pre-trial motion or at trial, then it is waived unless unknown at the time). In this case, Hulett pled guilty to the charges. A guilty plea may effectively waive any later claim of double jeopardy. See United States v. Broce, 488 U.S. 563 (1989); Ricketts v. Adamson, 483 U.S. 1 (1987). However, a valid guilty plea may be collaterally attacked under an ineffective assistance of counsel claim, since a guilty plea cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. Broce, at 570 (quoting McCarthy v. United States, 394 U.S. 459, 466, (1969)); also, State v. Yodprasit, 564 N.W.2d 383, 385 (Iowa 1997) (citing State v. Tobin, 333 N.W.2d 842, 845 (Iowa 1983) (claim of double jeopardy is not foreclosed by a guilty plea); State v. Allah, 787 A.2d 887 (N.J. 2002) (review of defendant's claim of ineffective assistance of counsel, based on double jeopardy claim, could be had on direct appeal). In a nutshell, 13 V.S.A. § 7042 doesn't allow a court to increase a sentence after 7 days from the time it's imposed (unless an appellate court finds an error in the original sentence or the defendant misleads the court in some way, neither of which apply in this case). Nonetheless, Hulett may have waived this claim by pleading guilty. It will be interesting to see if the issue is appealed.

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#14)
    by David on Tue Feb 14, 2006 at 11:17:31 PM EST
    As a follow-up to my earlier post, the state did in fact file a motion for reconsideration under 13 V.S.A. § 7042 just within the 7-day deadline. A copy of their motion is available here: resentencing hearing Hulett waived his right to withdraw his original plea and his right to appeal. Story available here: [links deleted, not in html format. Please see comment rules, instructions are in the comment box.]

    Re: Public Pressure Leads to Longer Sentence (none / 0) (#15)
    by David on Wed Feb 15, 2006 at 09:48:37 AM EST
    Sorry about the links. Let's try it again. The state's motion is available here. It's also been reported that at the resentencing hearing Hulett waived his right to withdraw his original plea and his right to appeal. Story available here.

    Public Pressure Leads to Longer Sentence | 15 comments (15 topical)