Friday, February 21, 2020

Stone sentenced to 40 months

The criminal justice world, as well as the political world, are all talking about the Roger Stone sentence.  40 months...

Rumpole has a nice post about it here, calling the sentence too harsh.  He's right of course.  The problem is that so many people see it as lenient because the sentence was below the Sentencing Guidelines.  And that's the problem.  Over 3 years (YEARS!) in prison for a first-time non-violent and elderly offender is not lenient by any stretch.

We've become so accustomed to the Sentencing Guidelines that people -- including judges -- see downward variances as some sort of break.  But once we realize that the guidelines are just made up numbers, which are not based on anything, and that they have completely warped our system into jailing more people for longer amounts of time than any other country in the world, then we will see that downward variances are no break and 3+ years is lenient. 

Maybe we should not call them "downward variances."  That implies that the judge should start off with the guidelines.  Any ideas?


Anonymous said...

Your bigger point is 100% right. But you're using the wrong guy to make it with.

Stone is not just a first-time nonviolent offender in his twilight years.

He put the judge's image in cross hairs, effectively threatening the court. He intimidated a witness. And his crime is not just some local process crime. The circumstances of his crime go to the very fabric of our democracy.

40 months is not, on its face, too much. In fact, the judge probably got it just right.

Anonymous said...

Some Guidelines, like the child porn guidelines, are literally made up numbers. Others, like the ones used for Stone's sentence, are based on actual sentences for similar offenses.
Still do not understand why there is an uproar about perceived injustices in the criminal justice system ONLY when it is a rich, white guy getting hammered. I'm not saying that he deserved the sentence BECAUSE he is a rich white guy. What I am saying is that there are far worse injustices (and many more) with people of color on the receiving end and yet nobody seems to mind those. It is troubling.

Anonymous said...

40 Months?! That's Martha Stewart Time!

Anonymous said...

I always have felt that the use of months, rather than years, in the guidelines was an attempt to downplay the extent of the sentence. I think that expressing it in years makes it more readily ascertainable to judges, prosecutors, defense counsel, defendants, and the public at-large just how much time of people's lives are at stake with sentencing.

I also agree about your point regarding Sentencing Guidelines and downward variances. I think they work like "sales" in retail: markup the price, claim a discount, and people somehow feel better about it, even though at the end, the numbers are all just made up anyway. Of course, the price of a polo shirt is nothing like the price of life, which just exacerbates how important sentencing reform really is.

Anonymous said...

3.33 years?! That's Martha Stewart time!

Anonymous said...


The crosshairs is a total red herring. It violated the gag order, but Judge Jackson chose not to impose contempt. And if there were no gag order, the crosshairs post is indisputably protected free speech. Remember when that comedian put a video/photo of trumps severed head? Yea, thats protected speech too. You think that comedian should be prosecuted for threatening the president and sent to jail for years???? Like the crosshairs, its not good taste...but this is America not Europe.

Very nice claim that the crime "goes to the very fabric of our democracy." On that point, let me ask you:

1. A DOJ lawyer altered an email used to get a FISA warrant to illegally spy on Carter Page for months in violation of his constitutional rights. Does that crime "go to the fabric of our democracy" such that you are now calling on the lawyer to be prosecuted and jailed for YEARS?

2. Andy McCabe lied multiple times to DOJ OIG about being the source of leaks. He was the acting head of the FBI! When the head of the FBI lied and corroded the process for investigating leaks, did that crime "go to the fabric of our democracy?" Are you calling for mccabes prosecution and incarceration for years?

If you agree 1 and 2 also should get years in prison because they are as bad as stone, and they never face even prosecution let alone 40 months incarceration, what is your view on a pardon or commutation for stone? Isnt it unfair mccabe walks scott free? He gets to walk because he was a fed and idiotic stone gets crucified? That is fair?

Anonymous said...

you really need to stop watching so much foxnews

Anonymous said...

and maybe a few less "energy" drinks too

Anonymous said...


The foxnews comment is funny (the energy drink comment is better) but quite revealing. Everyone seems to be up in arms about stone. You point out others like i did and ask for a consistent position (flipping to persons one might not hold political bias against), and what, you are a crazy foxnews whacko? Who cares about these others? Your comment makes my point for me. If someone goes scott free like mccabe (found to have lied by democratic appointed doj oig-- the report is devastating), and he is perceived as a democrat or antiTrump, even MENTIONING him is of limits. Ok never mind ill go back to foxnews ...apparently the groupthink people here from msnbc only care to debate stone by himself, and only whether 7 years or 9 years would be more fair. Buh bye

Anonymous said...

we'll miss you, foxnews guy

Anonymous said...

Even with your spin on the facts, I don't see that you make a case the McCabe did anything illegal let alone anything to the level of Stone. But, more importantly, the discussion here was: once, convicted, what is an appropriate sentencing recommendation and whether the President of the United States should try to influence the prosecution against one of his close pals (a real president would not - and don't give me the "at least he did it publicly" he should not do it at all). The other point being made was whether Stone's case is the one to get heated up about with real sentencing injustices happening everyday to people of color. So maybe take your deep state, conspiracy theories somewhere else

Anonymous said...


"I don't see that you make a case the McCabe did anything illegal let alone anything to the level of Stone."

Unbelievable comment.

As to guilt, you clearly havent read the oig report. Or you believe the "i provided false info because i forgot what i really did" defense, which was essentially stone's defense?

As to whether their conduct is on the same level, you do know both lied (stone to congress and mccabe to the oig) which is prosecuted under the ***exact same criminal statute***? Yes stone has the obstruction add-on when he threatened his friend and his cat. But mccabe lied multiple times and wasn't some washed up political hack...he was the acting head of the fbi who should have known better.

***you are deflecting***

you are not responding on substance because either you are not able to or choose not to. Dont fall back on people of color and name calling if you have nothing to say.

Anonymous said...

Wow! None of that rant made any sense whatsoever, but Wow!

Anonymous said...

This is 941 responding to 758. (the others who have responded were, well, others speaking their own mind)

Stone and the comedian (Kathy Griffin) are not comparable. Stone put the judge's image in cross hairs while the judge was presiding over his case. That is a threat to the court that is hearing his case. And, taken in the context that Stone intimidated a witness, these are real issues that can and should be taken into consideration when deciding whether he is just some "harmless first-time offender near the end of his life," as some people would argue.

Also, Griffin engaged in her remarkably tasteless and stupid conduct while a free and unindicted person, and did so re the POTUS (a person who is burned in effigy every day), not re the judicial officer presiding over her criminal persecution. These are not comparable in any meaningful way. The consequences that she should face are public ridicule, scorn, and isolation.

Stone and McCabe are not comparable. Stone was convicted by a jury of his peers. He is guilty. And the discussion relates to his sentence, not whether or not he should have been tried to begin with. If tried, McCabe may or may not be guilty of crimes. But he hasn't been and I don't know whether he should be (as I didn't know whether Stone should have been - but now he has been convicted, so, that debate is behind us).

If McCabe is tried, and if he is convicted, and if he intimidates witnesses, and if he engages in conduct that threatens the court, then he should probably be sentenced to a term of years like Stone. But none of that seems to have happened. So, your whataboutisms related to McCabe do not advance the discussion in any meaningful way.

Same problem with your example re Carter Page - its a whataboutism that does nothing to meaningfully advance the discussion of Stone's situation.

But directly to your question about the Carter Page issue, yes, I would advocate incarceration for any police offer or prosecutor (federal or state) that "altered an email used to get a FISA warrant to illegally spy on" an American. Full stop. People in the position of enforcing the rule of law have a higher duty to the rule of law than the rest of us, and as a result should face greater consequences when they undermine the rule of law. Happy now?

Turning to your question about a pardon or commutation of Stone, I am opposed. A pardon or commutation of Stone would erode the rule of law - particularly if done now while the issues is still fresh. The problem (a problem that is a running theme in the Trump presidency) is the problem of "appearance of impropriety." Public servants must not do things that ARE inappropriate or which may APPEAR to be inappropriate because, even if examined under a microscope and found to have been proper, the appearance of impropriety undermines the institutions of the rule of law and representative forms of government. If Trump pardons or commutes Stone, it will appear that he has intervened favorably for a political ally for political reasons.

Cutting off your whataboutisms before they get started re pardons/commutations by past presidents; presidents should not be in the business of pardoning their buddies. Every time it has happened in the past it was the wrong decision. The fact that others have made the wrong decision in the past does not greenlight making the wrong decision now. Men of character and substance understand that.

Anonymous said...


Excellent response. I appreciate your willingness to now engage more on substance, although of course you cant resist ending with character assassination...

But you are wrong to differentiate stone and griffin wrt the crosshairs post. You argue "These are not comparable in any meaningful way" and suggest griffin's treatment of potus is fine because potus is potus while jackson is the presiding judge. But as to the analysis of ***whether the crosshairs post is criminal conduct***, they are totally the same. That is because both jackson and potus are public figures, and neither action is an imminent threat of violence, thus both actions are protected free speech under the Constitution. Yes it violates the court order, but lets not rewrite history as if stone committed a criminal act. And lets remember the stupid threats/kill your dog comments were not even perceived as a threat by the recipient. And no one in the world actually thinks stone was threatening actual violence om the judge. The idea that we need to incarcerate stone extra time to make sure he doesn't assasinate a federal judge is fantasyland.

You can denigrate my analogy to mccabe all you want by calling it "whataboutisms." But when considering the proprietary of a sentence and whether to pardon, "whataboutisms" are exactly what is required. Just like the crack disparity was attacked with the same.

And for my last statement here. It was obvious to anyone stone was and is guilty. Do me a the oig report on mccabe.

TY for taking the time to read and consider my opposing opinion.

Anonymous said...

The crack disparity was not attacked with whataboutisms, it was attacked with facts. The sentencing commission held hearings. looked at statistics and heard from experts. All those facts came to the same conclusion, that there were no discernable differences between crack and powder cocaine. There was no basis to have a 100:1 sentencing disparity and the two drugs should be treated equally. Yet for nearly a quarter of a century crack defendants (mostly black) were punished substantially harsher than powder cocaine defendants (mostly white). The law is still not fair, its just that the disparity is 18:1 as opposed to 100:1.
See: facts, statistics, reality and not foxnews whataboutisms.

Bob Becerra said...

I think as long as the law requires the district judge to actually calculate and consider the guideline level of the defendant, any sentence not in conformity with that score is going to be either an upward or downward "variance". I think that instead of calculating the guidelines, there should just be a database judges and counsel can easily look at to see average sentences for similarly situated defendants, and then apply Sec. 3553 to the defendant to get an individualized result. Then you can dump the "variance" language because there would be no guidelines to vary from.

Anonymous said...

That's essentially what the Guidelines are