You’ve Got Time! Reporting on Sentences

UPDATE: More misreporting, this time from WNCN, where we’re told that Jahaad Marshall was sentenced to “more than 40 years in prison,” when in fact it was more than 260 years in prison.


Cannon Patrick
One of my pet peeves is incorrect or exaggerated reporting on sentencing. I realize that sentencing schemes can be convoluted, and there are entire Continuing Legal Education programs devoted especially to just the problem of sentencing, how jail credit is applied, how sentences can be run concurrently or consecutively, and, of course, the dreaded and convoluted federal sentencing guidelines.

Even on the state level – North Carolina has its version of structured sentencing – figuring out a person’s potential liability isn’t always easy, especially if you don’t practice criminal law day-in and day-out. But it can be done, and if reporters have trouble figuring out a sentence, they can certainly ask. Call (919) 352-9411.

Two media stories this week highlight the problem of media reporting and sentencing.

Shabar Marshall’s Prospective Sentence

This is an exchange I had with a WRAL reporter earlier today:

Shabar Marshall, the younger of two brothers accused of four Raleigh home breakings, the last of which was a January 2013 Oakwood home invasion involving a sex offense and the charge of attempted first degree murder, pled guilty earlier this month to some of the charges.

The guilty pleas are “open pleas” meaning that the 17-year-old Marshall will be able to ask, through his lawyer, for leniency, but the sentencing judge has no obligation other than to abide by the law.

What is his prospective sentence? In this particular case, there are no mandatory consecutive sentences by law or by plea. In other words, the judge, if he wants, could conceivably sentence Shabar to the lowest possible punishment for the most severe crime, and then run all other sentences concurrent to that sentence so that when he finishes the most severe sentence, he will have finished all sentences. Or the judge could run them all consecutive to each other, in which case he will spend the rest of his life, and then some, in the Department of Adult Corrections.

The highest level offense to which Shabar Marshall has pled, according to WTVD is the sex offense that occurred during the Oakwood burglary. First Degree Sex Offense is a Class B1 felony. Shabar Marshall is at least a level 3 prior record level, owing to a conviction from the fall for First Degree Burglary (a Class D felony for which he got 6 points).

The minimum punishment is 190 months for a level 3 offender (bottom of the mitigated) but this is not a mitigated offense. Consequently, Shabar Marshall could expect to be sentenced between 254 minimum and 317 minimum, or between about 21 years minimum and about 26 years minimum. Absent a pardon or commutation of his sentence, Marshall will spend at least 21 years in prison.

The truth is he will spend more time in prison.

But will he necessarily spend a minimum of 154 years in prison as was incorrectly reported earlier today in WRAL?

No. Since the plea is open, the judge has the option of running the sentences consecutive to each other (also called “boxcar”) or running them concurrent. He could also do a mix – some consecutive, some concurrent. The judge has wide latitude.

No doubt, Shabar Marshall will spend a long time in jail. His lawyer probably hopes that by accepting responsibility, he can argue for some kind of sentence that allows him to get out of prison before he departs this earth.

Mayor of Charlotte Faces a Million Years

North Carolina structured sentencing is tough enough to understand, especially when the media is reporting on a case with as many counts as in the Marshall brothers case.

But federal sentencing guidelines are even more confusing and opaque. Former federal prosecutor Ken White at the popular blog Popehat wrote about what he calls the “eleventy million years” phenomenon.

People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU’D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.

Patrick Cannon, the recently departed Mayor of Charlotte, is the victim of this type of reporting. WRAL says Cannon “fifty years in prison… and a $1 million fine” That’s a lot, a lot more than you’d get for a rape conviction in state court. The Charlotte Observer says, “[i]f convicted on all charges, [Cannon] faces up to 50 years in prison and a $1.5 million fine.” CBS News says it’s just 20 years, and $1 million.

Eleventy Million Years
Elsewhere on WRAL’s website, an Associated Press story also says 20 years/$1 million. If I were Cannon, I’d prefer to be sentenced by the Associated Press:

In Cannon’s case, the Criminal Complaint identifies a number of alleged incidents, but doesn’t yet specify the total number of crimes the government will ultimately pursue against Cannon. The truth of the matter is that Cannon is probably looking at much shorter than even the 20 years, assuming the current conduct is the only conduct for which he is charged.

First, Cannon is a Level 1 offender, with no prior criminal history. A useful yardstick is Rod Blagojevich, the former governor of Illinois who was pretty flamboyant in his bribe-taking.

Blagojevich went to trial, and was convicted of 18 counts – 1 in his first trial, and 17 in his second trial – and was ultimately sentenced to 14 years in prison. Under federal rules, Blagojevich will serve at least 85 percent of his prison sentence. His Bureau of Prisons projected release date is May, 2024.

That’s a far cry from the 300 years in prison that Reuters reported when Blagojevich was originally indicted.

If Cannon strikes a deal with prosecutors, he may end up facing much less than the 20 or 50 years (depending on who you read) currently predicted for him.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.