17 July 2003
Thursday, July 17, 2003 - It's called downward departure. It's a fancy term that means making the punishment fit the crime.
Federal Judge Robert Blackburn needs to do it July 25 when he sentences three nuns convicted of protesting against nuclear weapons.
In April, a jury found Sisters Ardeth Platte, Carol Gilbert and Jackie Marie Hudson guilty of obstructing national defense and damaging government property for hammering on a missile silo in northern Colorado.
The nuns' prior civil disobedience, combined with their latest convictions, puts them in the category of dangerous felons as far as federal sentencing guidelines are concerned.
The guidelines call for these women, who have devoted their lives to promoting peace and nonviolence, to serve six to eight years in the penitentiary.
If this constitutes homeland security in post-Sept. 11 America, the watchdog needs dentures. When they're not protesting for peace, the nuns teach in poor neighborhoods, helping the least of us. Locking them is like locking up Mother Teresa. It's just wrong.
So it falls to Judge Blackburn to do what's right.
He's got the power to depart from the sentencing guidelines. To do it, a judge must decide that special circumstances exist, said Sam Kamin, an assistant professor of law at the University of Denver.
"The judge basically has to say that this isn't what Congress intended when it approved the guidelines," Kamin explained.
In the nuns' case, that's such a no-brainer that John Suthers, the U.S. attorney for the Colorado region, looks brain dead.
Suthers' office plans to formally respond to the nuns' requests for downward departures today, a spokesman said.
But the government's position all along has been that these peacemakers aren't blessed.
"They have been prosecuted in the past for similar acts and sentenced to short periods of incarceration, which have not served as a deterrent," Suthers said.
Suthers apparently sees symbolic protests as security threats. He thinks taxpayers need to pay hundreds of thousands of dollars to keep the nuns off the streets.
I propose that the politically posturing prosecutor write the check out of his publicly financed salary. He obviously has too little on his plate and not much more in his head.
The crimes committed here involve three old women cutting through a fence and whacking a few hammer blows on a missile silo of reinforced concrete several feet thick. What happened posed no more threat to national security than refusing to recite the Pledge of Allegiance or sing "The Star Spangled Banner."
As for costing the government money, I'm betting Suthers put more of a hurt on the federal purse prosecuting the nuns than the nuns put on the missile silo.
Platte, Gilbert and Hudson spent several months in jail awaiting trial. Time served, combined with some community service, makes sense.
The nuns should be required to pay to repair the fence they cut. They might even need to pay for the time soldiers spent responding to their protest.
But six to eight years in prison for Hudson, who is 68, Platte, who is 67, and Gilbert, who is 55, mocks justice.
DU's Kamin said that only extraordinary circumstances justify downward departures from sentencing guidelines.
Devoting your life to peace in a war-torn world qualifies not only as extraordinary, but as exemplary.
No matter, Kamin said, federal judges don't like to depart from the guidelines because the decision to do so is automatically reviewable and reversible.
"Judges," he added, "don't like to be reversed."
They ought to like turning peaceniks into prisoners even less.
Federal judges - in this case Blackburn - have wide discretion to decide what factors demand departure from sentencing guidelines.
The ability to get around the sentencing guidelines exists because the folks who wrote the guidelines knew the guidelines were not one-size-fits-all.
They sure don't fit these convictions.
The nuns have never hurt anyone. They never will. They're sort of like angels. If the whole world adopted their sacrifice and respect for humanity, terrorism and war would cease. So would crime. It would be heaven on earth.
Unless Judge Blackburn departs from the sentencing guidelines, the United States will show its angels hell on earth.
"You could make an argument that lack of discretion (in sentencing) looks ridiculous because you have people here who aren't a threat," Kamin said.
You could also argue that anyone who puts nuns in the pen for six years runs a kangaroo court.