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Can Sentence Enhancements Deter the “Undeterrable?”

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Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235

Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

Sentence enhancements increase the length of a prison sentence.  The harsher sentence  deters future criminal activity. What about the “undeterrable” criminal who cares very little for future consequences?

Enhancements are generally based on certain facts that allow the court to “enhance” or increase the sentence beyond what is normal for that particular crime.  Common situations that allow for an enhanced sentence are:

  • Prior convictions
  • Habitual offender (e.g., “three strikes”)
  • Weapons (e.g., gun laws)
  • Where the crime occurred (e.g., school zone)
  • Victim’s age

Is someone less likely to commit a crime simply because they know if they get caught, jail time is almost certain?  Are they less likely to use a gun in committing a crime because the sentence would be longer?  What if, by the criminal’s actions, it is clear that deterrence would not be effective, i.e. the criminal is “undeterrable?”

An example of an “undeterrable predator.”

If you had to imagine a case where sentence enhancements should be applied, U.S. v. Batchu would certainly be a good example. Mani Batchu was a doctor in an adolescent psychiatry residency at the University of Illinois in Chicago.  This 29-years-old actively pursued   a sexual relationship over the internet with a child he knew was 15 years old.  Even worse, he defied subsequent orders from two state courts to stop contacting the child and continued to have sex with her.  In fact, Batchu did not stop until he was taken into federal custody.

After luring the young girl through the internet, he convinced her to meet him in person some eight months later.  He took her from her home in Massachusetts, to a hotel in Connecticut to have sex.  After being arrested for statutory rape and released on bail, he surreptitiously met the child again while she was on vacation with her family in Florida.  When Batchu was subsequently taken into federal custody, the authorities discovered from videos on his computer, that there were two other young victims.

Sentence Enhancements for sexual offenses to minors.

With the increasing popularity and access to the internet, the United States Sentencing Commission along with Congress created complex sentencing guidelines specifically for sex offenders who use the internet to prey on children.  The Sex Crimes Against Children Prevention Act of 1995 increased sentencing guidelines for crimes involving child pornography, prostitution, and use of a computer in child pornography cases.

Batchu pleaded guilty to the charges against him and the court imposed eight sentence enhancements.  Those enhancements were based on the sexual nature of his crimes, the ages of the victims and Batchu’s use of the internet.  The court did not hesitate to sentence him to the maximum allowed under the guidelines, because the court considered Batchu an “undeterrable predator.”  Yet, if sentence enhancements are meant to deter criminals, what good are they when the criminal is undeterrable?

What if the criminal proves himself to be undeterrable?

Batchu is obviously not the only illustration of an undeterrable criminal.  For example, United States v. De Veal dealt with a career criminal who was described by the court as “incorrigible, undeterrable, recidivating, unresponsive to the ‘specific deterrence’ of having been previously convicted.”  The defendant in that case was convicted of trafficking narcotics.  The court described the dilemma of the undeterrable criminal as follows:

. . . the danger represented by these people is undeterrable through the criminal sanction; even if the proverbial cop were standing at their elbow, they would be willing to engage in behavior that will harm others.

However, there is still some benefit of sentence enhancements.  In a 1995 memorandum to all United States Attorneys, Assistant Attorney General Jo Ann Harris explained the value of enhancements such as the “Three Strikes” rule this way:

Trial of an eligible defendant under “Three Strikes” will often provide a more effective punishment than a prosecution under, other federal statutes. For the state prosecutor, “Three Strikes” provides a vehicle to take the most dangerous offenders out of the community and keep them out. This is particularly important in states where prison overcrowding results in early release even for violent criminals.  (emphasis added).

David S. Abrams, of the University of Pennsylvania, agrees.  In a paper he wrote in December of 2011, he said that when the criminal justice system has little or no impact on criminal behavior, the only benefit of a sentence enhancement would be keeping these likely reoffenders off the streets for longer stretches of time.  We can only hope that will be enough.

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