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UNITED STATES v. JACKSON

October 7, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
DWIGHT EUGENE JACKSON, Defendant


Brian Barnett Duff, United States District Judge.


The opinion of the court was delivered by: DUFF

MEMORANDUM OPINION

Dwight Eugene Jackson moves for reduction of sentence.

 On January 2, 1987, a jury convicted Mr. Jackson on each of the following three counts: Count I, Bank Robbery (18 U.S.C. 2113 (a) & (d)); Count II, use of a firearm during the commission of a crime of violence (18 U.S.C. 924 (c)); and Count III, being an armed career criminal in possession of a firearm (18 U.S.C.App. II 1202 (a), repealed in part in 1986). On February 18, 1987, this court sentenced Mr. Jackson to consecutive sentences, running in the following order: 25 years on Count One; imprisonment without parole on Count Three; and 5 years on Count Two.

 On appeal, the 7th Circuit found that this sentence, being within the statutory range, was "essentially free of appellate review." United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987). The court further noted that Mr. Jackson was a career criminal, that specific deterrence had failed, and that this court was entitled to consider general deterrence and incapacitation in deciding upon an appropriate sentence.

 The majority opinion written by Judge Easterbrook does not say that the sentence is unduly harsh, but speculates that if it is, "the holder of the clemency power may supply a remedy." Id. The instant motion calls upon this court, under Fed.R.Crim.P. 35, to make that determination under judicial authority, which it has, and not under clemency power, which it has not. For fifteen years, since 1976, this court has had, in one venue or another, the awesome responsibility of sentencing, and of frequently depriving of freedom, fellow citizens. Through that period of time, the court estimates it has dealt with the conviction and sentencing of over 2,000 persons. There is no responsibility in this life which this court throughout this experience has considered more carefully, even more prayerfully.

 The sentence imposed here was rendered after deep and profound consideration of many elements. And yet, this court has delayed resolution of Mr. Jackson's motion for months in order to gain perspective. In some respects, the delay itself may seem untoward, since the defendant, incarcerated without hope of parole, may and undoubtedly does yearn for an early and affirmative response. Nonetheless, the re-evaluation under the law and under justice requires a thoughtful and dispassionate treatment.

 The court reviews here its decision, the transcript of the sentencing hearing, Mr. Jackson's motion, the majority opinion of the 7th Circuit, and the concurring opinion of Judge Posner. It has been necessary to examine every element of the decision, including a self-examination of the quality of justice and judgment reflected in the court's decision. Self-justification would be irrelevant and inappropriate. Equally, failure to deal adequately with all expressions on the appropriateness of this sentence would be itself inappropriate.

 In ruling on the motion the court reviews the sentence with the utmost seriousness in light of the fact that it is a most severe sentence, the most severe ever administered by this court. Because serious examination is required, even unavoidable, in light of the harsh approbation of the concurrance to the Seventh Circuit opinion affirming the sentence imposed on Mr. Jackson. Mr. Jackson relies heavily upon that concurrence in his motion. The court's respect for the opinions of Judge Posner is real; it feels constrained to give full consideration to his criticism of the court's "savagery" and of the court's affront to the norms of a "civilized society". Id. at 1199, 1200.

 The petitioner proposes first the principal of proportionality and relies primarily on the enumerated objective criteria of Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983).

 The first of these is the gravity of the offense and the harshness of the penalty. The court agrees that this sentence is very harsh; the petitioner argues that the sentence is significantly disproportionate to his crime. The petitioner in supporting this position quotes the concurring opinion, "I do not mean to denigrate the gravity of his offense by pointing out that he has never inflicted a physical injury," Id. at 1198, and so claims his conduct does not warrant the severity of the sentence. This court, however, discussed at length the danger which Mr. Jackson posed to society and even to himself, in light of his refusal to modify his conduct. See transcript, pp. 33-35.

 The second of the Solem criteria is the severity of sentences imposed on other criminals in the same jurisdiction. Again, the petitioner quotes the concurring opinion which, citing United States v. Fountain, 768 F.2nd 790, 799-800 (7th Cir. 1985), states:

 What the petitioner and Judge Posner do not mention is that the prisoners in Fountain are already serving three life sentences for murder and that the trial judge tried to sentence them to a term of years (50 to 150) for which the statute did not provide, in order to avoid the statutorily mandated parole eligibility available after ten years.

 Additionally, the petitioner cites a different statute, 15 U.S.C. Section 3575 (since repealed), which permits sentencing a "dangerous special offender" to a term not to exceed twenty-five years with possible parole. The petitioner does not, however, point out that the twenty-five year sentence could have been consecutive to his other sentences. Petitioner also cites lesser sentences for some serious offenses, but never recounts the additional circumstances of those cases which every trial judge and trial lawyer knows are considered in criminal cases.

 The petitioner also refers to other sentences imposed under the Armed Career Criminal statute which were treated by the trial court and the affirmance by the Seventh Circuit in this case. The sentences in those cases ranged from fifteen to twenty-five years, but again there is no indication of circumstances comparable to this petitioner's record of crime. (The court notes that of those sentences cited, none would lead to Mr. Jackson's release before he reached at least the age of sixty-five.

 Mr. Jackson was 36 years old when this court sentenced him, but thirty-five at the time he committed his last bank-robbery. He was arrested and continuously incarcerated from that day--his sentence thus runs from the time he was thirty-five. Count 2, which charged the use of a firearm during the commission of a crime of violence carries a mandatory five year, consecutive sentence without possibility of parole, 18 U.S.C. § 924(c). The court sentenced Mr. Jackson to 25 years on Count 1, the bank robbery, and Mr. Jackson has not challenged that portion of his sentence. Thus, even if the court had sentenced Mr. Jackson to a concurrent sentence of 25 years on the Armed Career Criminal count (the statute required that the court impose a sentence of imprisonment of not less than 15 years, with no possibility of parole) he would nonetheless be facing jail until his sixty-fifth birthday. If the sentence on Count 3 were made consecutive, Mr. Jackson would not be released until he was 90 years old. Even the sentence suggested by Judge Posner, 20 years in prison with no possibility of parole on the bank robbery count, would, in combination with the mandatory additional five years on Count 2 and a concurrent sentence on Count 3, prevent Mr. Jackson's release until he reached the age of sixty. *fn1"

 The concurring opinion cites the confidential sentencing recommendation of the probation officer (which was not a part of the court record, and was given to the higher court in violation of the local court rule which at the time called for a mandatory citation of contempt). The concurrence states that the probation officer recommended a sentence of 10 years. In fact, he recommended 30, and this without any reference to the three special sentencing provisions in issue in this case. Indeed, the probation officer's parole prognosis demonstrates that he was not aware of the mandatory minimums without possibility of parole imposed by two of the three statutes. It is not to deprecate that report to suggest it was given the conideration which it deserved and that the court relied most on the factual, rather than legal statements contained within it.

 It is worth noting that the non-confidential parts of this recommendation which Judge Posner ordered to be delivered to him also include a number of relevant comments including:

 1. The defendant continued to deny his guilt to the probation officer even after his conviction, arguing that the charges were trumped up and federal officials in charge of his case were conspiring against him.

 2. In addition to his seven armed robbery convictions, he had attempted to murder his army colonel in Vietnam, and assaulted a sergeant. He had been convicted in the army of possession of drugs. He admitted to additional possession of drugs, and he was charged with an additional armed bank robbery which charge was dismissed.

 3. The report supplements a finding by Judge Grady in a prior sentencing and notes that the Judge's comments were extremely important when he wrote: "It is entirely fortuitous that no one other than the defendant was injured in this escapade. . . . He shows no remorse. . . . The odds of his succeeding on parole are obviously poor. I would recommend against parole unless there is some fairly objective evidence of it and it is difficult to foresee what that evidence would be."

 4. The defendant was unable to clearly respond when asked what he would have done if he was confronted by a bank guard with his pistol drawn.

 5. His record reflects the use of violence and force in perpetrating criminal acts.

 6. The defendant is a hard-core recidivist and poses a direct threat to the safety and welfare of the community. If the defendant is given his freedom anytime soon, there is a distinct possibility that further involvement in illegal activity might result in severe injury or death to some individual. . . . . . . . not amenable to any psychotherapy or any similar rehabilitation program.

 7. He should be maintained in custody and not be released for any reason (during the term of his sentence).

 8. The court should be concerned with deterrence and punishment.

 The memorandum in support of this motion for correction of sentence or for reduction of sentence, after dealing with the argument on proportionality then emphasizes the concurring opinion. It attaches as well a copy of the petition for certiorari denied by the Supreme Court which indulges primarily the same two emphases. It is then appropriate for this court to consider more fully the argument if not the analysis of the opinion.

 Judge Posner has reflected on the fact that effective appellate Judges carefully select their facts and martial their rhetoric to support their goals. Posner, Cardozo: A Study in Reputation at 55 (The University of Chicago Press, 1990). ("It is not the invariable practice of appellate judges to slant the facts in favor of the outcome, although goodness knows it is common.") His concurring opinion in this matter reflects that proposition.

 The concurring opinion agrees with this court that "Jackson is unquestionably a dangerous and hardened criminal." 835 F.2d at 1198. This court respectfully agrees with the concurring opinion's remark that the fact that no one was hurt "is relevant to deciding whether the sheer enormity of his conduct warrants imprisonment for the rest of his life as a matter of retributive justice." Id. The court agrees that fact is relevant and recognizes the thesis that Mr. Jackson's conduct does not warrant life imprisonment solely as a matter of retributive justice. "It does not," says Judge Posner and this court certainly agrees. *fn2"

 The concurring opinion surprisingly asserts, on the other hand, that the District Court articulated only one ground for sentence, the need to prevent Jackson from committing further crimes. Id. at 1199. Any reading of the sentencing transcript clearly reveals that this is not accurate. (See Appendix attached to this opinion).

 Judge Posner's independent research notes that "in 1986 more than 62% of all persons arrested for robbery (any sort of robbery - I can find no breakdown (continues Judge Posner) by type of robbery) were below the ages of 25 and only 3.4% were 60 years old or older." Id. From this, Judge Posner suggests that this criminal defendant would probably not commit a bank robbery at age 55 after completion of Judge Posner's suggested sentence of twenty years. (That sentence, as this court has noted above, is the absolute minimum to which this unrepentant, "dangerous and hardened criminal" could be sentenced).

 Judge Posner does not consider whether strong arm robberies are more frequent than armed robberies, or whether older persons more frequently 'snatch and run', or physically roll their victims, or beat them, etc. than do younger, stronger, quicker men. Nor do the statistics offered suggest whether there are fewer recidivists on the streets because more of them are in jail in their later years. The Judge suspects that bank robbery is more of a young man's crime than an old man's crime because a bank robber must be wiling to confront armed guards and able to make a quick getaway. Id. at 1199. Well, a gun helps any robber, young or old, and a car helps any robber, young or old, but either a gun or a car tolerates the strong possibility of victims. It would appear that the Judge has never heard of the most famous bank robber of our time, the nefarious Willie Sutton, who when asked, in his seventies, why he continued to rob banks, replied "Because that's where the money is."

 The concurring opinion suggests that the risk that Mr. Jackson will commit another robbery in his 70's or 80's is too speculative here to warrant imprisonment until the defendant dies of old age. Id. at 1199. One wonders whether, in true justice, we should speculate equally whether, if released, the man would eventually kill somebody. Which of these speculations on these facts is the wiser course? We cannot make this choice without conscience, and we certainly cannot do it savagely.

 The concurring opinion amazingly brings Law and Economics into the equation and suggests, apparently with careful thought, (and the court's respect for the clarity of the opinion assures the court that is the case) that incapacitation may, by imprisoning Mr. Jackson, "simply make a career in crime more attractive to someone else. . . . who now faces reduced competition in the crime 'market.'" Id. at 1199. Unless, of course, deterrence works, a proposition the concurring opinion finds possible but speculative. Taking the suggestion to heart, the court is deeply concerned that by sentencing Mr. Jackson to prison it may have seduced some irresolute person into the bank robbery "market."

 The concurring opinion says of deterrence "it was not mentioned by the District Judge." Id. at 1199. This in spite of the pre-sentencing report, which the court considered that specifically incorporated deterrence, and in spite of the court's statement during sentencing that:

 "One of the things that I think the Congress of the United States has firmly decided is to in fact say, 'Well, we are not going to pass firearms control legislation, but we are surely going to deter the misuse of them by providing within the criminal, federal criminal justice system for serious sentences for the people who do it in order to deter it from happening, and they're giving the federal judges the responsibility of seeing to it that that legislative message is effected within the court system.'

 App. 37-38.

 The concurring opinion goes on to speculate whether a life sentence for bank robbery would deter many 35 year olds from robbing banks any more than would a twenty year sentence. Id. at 1199. The court is sure that the Judge is not suggesting a principle of lesser sentences for older men and equally sure that the concurring opinion misses the elements of the sentence by emphasizing the bank robbery whereas, the sentence of life in prison on Count Two was imposed because of Mr. Jackson's possession of a gun during the bank robbery, and because this was not the first time he had done so. *fn3"

 The appropriate question is whether a life sentence for using a gun after a record of violent crime will serve "pour encourager les autres" who consider doing the same--even if it merely sends them to the "market" for non-violent crime, instead of some other, more legitimate "market".

 In concentrating on the issue of bank robberies from an economic standpoint, the concurring opinion notes that the gains from such crimes are slight. Id. at 1199. The concurring opinion points out that in 1986 the average "take" from a bank robbery was $ 2,664, Id. It doesn't point out that bank robberies were ten times more lucrative that year than other robberies, or that the successive "takes" of this defendant were many thousands more than the average. FBI, Uniform Crime Reports 20, 18 (1986). Many bank robbers are 'green' and scared note-passers--Mr. Jackson was neither.

 If, as the concurring opinion points out, the average punishment for bank robbery (without enhancement) is something more than 13 years, 835 F.2d at 1200, then one wonders why 20 (the minimum possible including required enhancements) would be the right number of years for this incorrigible and hostile recidivist.

 The concurring opinion never touches the problem of the possession of guns by violent felons although that is what underlies this sentence. The court feels, however, that the passage of time and the opportunity to think has given it some considerations on the sentence which it has not previously mentioned. For this the court owes thanks to the clarity and dispassionate treatment of the majority opinion and to the memorandum of the defendant in support of his motion.

 As the court's extensive discussion above demonstrates, three considerations are predominant in its consideration of the propriety of the sentence it imposed upon Mr. Jackson. First, Mr. Jackson has a long and compelling history of armed violence, and has demonstrated neither acceptance of nor remorse for his responsibility for this history. Second, the sentence the court imposed upon Mr. Jackson is most severe. Finally, the court must be concerned with the deterrent effect of Mr. Jackson's sentence on others.

 No one disagrees that the law authorized this court to impose the sentence it did. But the court must also ask itself, in light of the severity of the sentence, did justice require it? After long, careful and thorough consideration, this court has concluded that it did.

 Retribution and the prevention of his recidivism, of course, are not the only considerations which have guided this court in imposing Mr. Jackson's sentence. The court has also carefully considered the potential deterrent effect that a harsh sentence will have on other would-be bank-robbers. Judge Posner is correct; no one knows the true deterrent effect of any particular sentence. However, the likelihood that a particular sentence will deter others from committing similar crimes is a consideration which is well established in both the law and literature relating to sentencing.

 Finally, the court has considered whether Mr. Jackson has the ability to function outside of prison. He has not demonstrated that ability to date (Mr. Jackson has been in trouble of one kind or another almost constantly since he was 18 years old). Mr. Jackson must be imprisoned (according to the mandates of the statutes which he most recently violated) at least twenty years. He would not be released until he has reached his fifty-fifth birthday. The minimum sentence, however, is not appropriate in this case, in light of Mr. Jackson's long criminal history and complete lack of remorse.

 The Sentencing Guidelines currently in effect could yield a sentence of 360 months to life. *fn4" The minimum sentence under the Guidelines would thus be 30 years, and again, Mr. Jackson's crime and history merit more than the minimum sentence.

 Under any of the sentencing schemes set forth above, Mr. Jackson will spend the majority of the remainder of his life in prison. The court does not believe that Mr. Jackson has now, nor will he when he is 75 or 80 years old, have the skills to function outside of a controlled environment such as a prison.

 The court has given Mr. Jackson's sentence deep and careful thought. It has given similar consideration to the various comments made upon the sentence, as discussed above. After having done so, the court nonetheless concludes that the sentence imposed here was appropriate. Accordingly, the court denies Mr. Jackson's motion for reduction of his sentence. The court also notes, however, that if Mr. Jackson maintains a good record in prison, he may at some later date be able to press a successful petition to the true holder of clemency power--the President of the United States.

 Conclusion

 Mr. Jackson's motion for reconsideration is denied.

 APPENDIX

 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

 UNITED STATES OF AMERICA, v. DWIGHT EUGENE JACKSON, Defendant.

 Docket No. 86 CR 426

 Chicago, Illinois

 February 18, 1987

 10:00 a.m.

 87-1301

 TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE BRIAN BARNETT DUFF

 For the Government: WILLIAM HOGAN

 (Assistant United States Attorney

 219 South Dearborn Street

 Chicago, Illinois 60604)

 For the Defendant: GREGORY J. SCHLESINGER

 (180 North LaSalle Street

 Chicago, Illinois 60601)

 Court Reporter: Lois A. LaCorte

 219 South Dearborn

 Chicago, Illinois 60604

 THE CLERK: 86 CR 426, United States v. Dwight Jackson for sentencing.

 MR. HOGAN: Good morning, your Honor, William Hogan and James Zuba on behalf of the United States.

 MR. SCHLESINGER: Gregory Schlesinger on behalf of the defendant, your Honor, who stands before the Court.

 THE COURT: And the probation officer is present in court.

 MR. USATUCK: Yes, your Honor, Al Usatuck, U.S. Probation and parole.

 THE COURT: Now, on January 2nd, 1987, the defendant was found guilty by a jury to the charge of bank robbery in Count 1, violation of 18 USC 2113(a) and (d), use of a firearm during the commission of a crime of violence, one count, in violation of 18 USC 924(c), and being an armed career criminal in possession of a firearm, one count, in violation of 18 USC Appendix II, 1202(a).

 A presentence investigation was ordered at that time with the sentencing date set for today before me. I have received a copy of the presentence investigation, and I have read it, and would like to know for the record first, Mr. Schlesinger, have you read the presentence investigation?

 MR. SCHLESINGER: I have, your Honor.

 THE COURT: Are there any errors or omissions that you think need to be noted?

 MR. SCHLESINGER: I find no substantial errors or omissions. I would also indicate that I read the presentence with the defendant and it's my belief that he finds no substantial errors or omissions.

 THE COURT: I believe that I am required to get that assurance from Mr. Jackson on the record, so although I'm quite confident that you have fulfilled your duties in that regard, I'll have to ask Mr. Jackson too.

 Mr. Jackson, have you read the presentence investigation?

 DEFENDANT JACKSON: Yes, I did.

 THE COURT: And do you think there are any changes that need to be made?

 DEFENDANT JACKSON: No.

 THE COURT: All right. Mr. Hogan --

 MR. HOGAN: Yes, your Honor.

 THE COURT: -- have you read the presentence investigation?

  MR. HOGAN: I have, your Honor.

  THE COURT: Does the Government feel there are any errors or omissions?

  MR. HOGAN: No, your Honor.

  THE COURT: My procedure Mr. Jackson, so you will understand, is invariable. I do every sentencing the same way, because I consider it a very difficult and important time for you and for everybody involved, and so what I do is I will ask your ...


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