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How Much Should Mind Matter? Mens Rea in Theft and Fraud Sentencing

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How Much Should Mind Matter? Mens Rea in Theft and Fraud Sentencing University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 11-1997 How Much Should Mind Matter? Mens Rea in Theftnd a Fraud Sentencing James Gibson University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation James Gibson, How Much Should Mind Matter? Mens Rea in Theft na d Fraud Sentencing, 10 Fed. Sent'g. Rep. 136 (1997). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. How Much Should Mind Matter? Mens Rea in Theft and Fraud Sentencing he U.S. Sentencing Commission recently result, she faced a sentence oflife in prison, with the voted to publish a proposal in the Federal possibility of parole after fifteen years. Judge Hiller T Register that revises the definition of"loss," Zobel, however, reduced the con-viction to involun­ the primary determinant of sentence length for theft tary manslaughter and sentenced Woodward to the and fraud offenses.' [Ed. Note: The Commission nine months she had already served. JAMES GIBSON proposal is reproduced at p.168 of this issue ofFSR.] Judge Zobel overruled the verdict not because of Anyone who has followed the Commission's delibera­ any dispute about the result of Woodward's con­ Attorney-Adviser, u_s_ tions on loss will see that the proposed definition duct-like the jury, he believed that Woodward's Sentencing Commission. attempts to address many of the contentious issues criminally culpable actions caused Matthew's death­ J.D., 1995, University of that have arisen in the case law and commentary. but because the evidence did not show the "malice Virginia School of Law. The issues that the proposed definition concentrates ... supporting a conviction for second degree The views in this article on, however, such as credits, interest, causation, and murder." J In other words, the difference between a do not necessarily reflect gain, tend to inform the inquiry into "actual loss" life sentence and "time served" was not the harm the position of rather than "intended loss," even though the latter done, but the harm intended or foreseen.4 A murder the LJ_S_ Sentencing concept is integral to both definitions. conviction contemplates a defendant who either sets Commission_ Although neither the current nor the proposed out to kill someone or engages in conduct that definition provides much guidance for working with constitutes an obvious risk to someone's life, s intended loss, the Commission did preserve the whereas involuntary manslaughter (and its more "whichever is greater" rule that is currently found in lenient punishment) is reserved for those who the fraud guideline: if the loss that the defendant produce the same result with a less pernicious intended is higher than the actual loss that occurred, mens rea. use intended loss as the final loss figure. It also Suppose, however, that Matthew Eappen had added a short definition of the term: '"Intended loss' merely suffered a minor injury. The jury, if it truly means the [economic] harm intended to be caused by believed that Woodward intended to kill the child, the defendant and other persons for whose conduct would have convicted her of attempted murder. the defendant is accountable under § 181.3 [and that Judge Zobel, with his more charitable view of realistically could have occurred]." 2 Woodward's mens rea, would probably have allowed Unfortunately, both the "whichever is greater" only a conviction for simple assault and battery. The rule and the proposed intended loss definition are difference in punishment is again significant, and seriously flawed. As the following discussion will again turns solely on the difference in mens rea. (A demonstrate, the "whichever is greater" rule has the conviction for attempted murder in Massachusetts effect of treating different defendants similarly, and can result in a sentence of up to ten years in prison - the proposed definition fails to account for certain twenty if poison, drowning, or strangulation was mental states that may merit increased punishment involved 6 -whereas a simple assault defendant is even though they do not rise to the level of"intent." subject to no more than a five-year sentence, and only Correcting these shortcomings would improve the two-and-a-half years if the victim was an adult.7) loss definition and help ensure that federal courts In ranking the seriousness of homicide and impose properly proportionate sentences. assault offenses, therefore, both the actual result of the crime and the result that the defendant intended I. The "Whichever Is Greater" Rule play a role. The law reserves its most severe punish­ ment for those who both intend to and do cause A. What the Nanny Trial Can Teach Us death. Those who intend to and do cause mere injury In order to show that the "whichever is greater" rule receive the lightest punishment. Finally, those who is fundamentally flawed, let me turn to a seemingly intend death but cause only injury and those who unrelated area of the law, one familiar to anyone who intend (at most) an injury but cause death fall followed last autumn's infamous "nanny trial": hom­ somewhere in between. And this is as it should be: icide sentencing. As we all remember, a Massachu­ two people who cause the same result should not setts jury convicted British nanny Louise Woodward receive the same punishment if one had a more evil of second-degree murder in the death of an infant in intent, and two people with the same evil intent her care, eight-month-old Matthew Eappen. As a should not receive the same punishment if the 136 FEDERAL SENTENCING REPORTER· VOL. 10, NO. 3 ·NOVEMBER/DECEMBER 1997 conduct of one produced more harmful real-world siders when sentencing a theft or fraud defendant. consequences than the conduct of the other. Second, even if one disagrees with the preceding point and believes that inchoate crimes do deserve B. The Loss Analogy the same punishment as completed crimes, the The logic we find in homicide and assault sentenc- "whichever is greater" rule is overbroad. It does ing, however, is absent from both the current loss ensure that the evil-minded criminal will not be definition and the new draft definition that the treated too leniently merely because his or her fraud Commission recently published. In both versions, was interrupted before it could bear fruit. Unfortu- the Commission focuses on the very same elements nately, it also ensures that less evil mindsets will be that distinguish homicide offenses from one another: ignored in many instances. Suppose, for example, the actual harm that the offense caused, and the that we have an experienced, previously reliable harm that the defendant intended. Fraud defendants, government contractor who submits the lowest bid however, are sentenced based on the actual loss that for a new project, but falsely states on the application they caused or the loss that they intended, whichever is that he has never been convicted of a criminal greater.I While this may appear at first blush to be a offense. He wins the contract and receives an initial methodology sensitive both to a defendant's mens rea installment of $i5o,ooo, but the fraud is discovered and to the actual harm that resulted, it is in fact a before any significant work has been done. The methodology that renders one of these two factors evidence clearly shows that despite his misrepresen- completely irrelevant to the defendant's sentence tation he intended to perform the contract in full and whenever the other is higher. It is the equivalent of was capable of doing so, so the intended loss is zero. sentencing a manslaughter defendant to life in prison The actual loss is $i5o,ooo. In such a case, the merely because he or she caused the same result as a "whichever is greater" rule would produce a loss cold-hearted murderer, with no "discount" for the amount of $i5olooo. In other words, the contractor difference in mindset. would suffer the same fate as a con artist who The most commonly cited justification for the intended merely to pocket the $i5o,ooo and skip "whichever is greater" rule is that it is necessary to town, even though the latter's mens rea is indisput- ensure that defendants whose frauds are exposed ably more pernicious. 9 before they cause any actual harm are not sentenced A similar fate befalls the debtor who fraudulently too leniently. And it is true that a defendant who procures an unsecured $i5o,ooo loan with the intent intends a $150,000 loss but whose fortuitous and ability to repay it on schedule, but who is caught apprehension prevents the loss from exceeding, say, and arrested before any payments are due. The $io,ooo deserves more punishment than a defen- debtor, having already received the loan proceeds dant who intended to and did cause no more than a from the bank, is accountable under the current and $io,ooo loss. But the "whichever is greater" rule is a proposed loss definitions for a $i5o,ooo loss; he or poor solution to this problem, for two reasons. she is treated just like a defendant who stole First, in an effort to ensure that inchoate frauds $I5o,ooo from the bank's vault. But is the debtor are not treated too leniently, the rule treats them too who intends no loss to the bank truly deserving of the harshly.
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