Offense level

The guidelines that will help Judge Ginger Berrigan decide Ray Nagin's sentence make about as much sense as those stupid charts NFL coaches use to decide whether they want to go for two point conversions.

Under the rules, Nagin starts with a base “offense level” of 20 because he was an elected official who took multiple bribes but otherwise has no criminal history — facts that, with the jury verdict, are now undisputed.

The other major factors that will add points to his offense level include the financial “loss” the court assigns to his actions, the court’s judgment as to whether he was an “organizer or leader” in “criminal activity” that involved at least five people, and whether Nagin is found to have obstructed justice by lying to investigators and to the court.

There is some gray area in all of these questions. For instance, the monetary loss can be calculated to include not only bribes paid and received, but also the proceeds of any contracts that resulted from bribes.

At a minimum, however, Berrigan will almost certainly find that the loss was greater than $200,000, as the jury convicted Nagin of taking more than that amount in bribes. That would bring his offense level to 32, but it could go significantly higher depending on whether Berrigan decides to include the profits of some or all of the contracts Nagin signed.

Were the judge to use the amount of “ill-gotten gains” she has ordered Nagin to forfeit — $501,500, which includes the money his granite company took in from a deal with Home Depot — the offense level would jump to 34. If she includes the profits from contracts won by firms owned by those who bribed Nagin, the number could go higher.

This article is fascinating.  At its core is the premise that the sentencing guidelines will trump sentiment coming from third party appeals for a harsher or lighter treatment.  In a way, we are told, this might be a good thing for Nagin since he appears to have surprisingly few "friends" speaking on his behalf.

And yet, after carefully explaining that the sentence is really predetermined by math, we come right back to multiple factors the judge can consider if she feels the math is maybe too harsh.  For example, she can take into account whether there is a pressing need to protect the public from future crimes of this nature by the defendant. In Ray Nagin's case, that would seem a minimal risk.

Also the judge can go light on Nagin if he begs for mercy.

One factor that could play a role is whether Nagin speaks at the hearing and what he chooses to say.
When defendants plead guilty, they typically give an “allocution” — a speech to the court apologizing for their behavior that can sometimes sway judges.

But Nagin did not plead guilty, and although he was convicted by a jury, he has never admitted to any wrongdoing, even creating a website to raise money for a legal defense fund in which he steadfastly maintains his innocence.

“In my experience, the kind of speech a defendant gives at sentencing can matter a lot to what judges decide to do, especially within the (sentencing) range,” said Tania Tetlow, a former federal prosecutor and now a professor at Tulane Law School. “I’ve seen judges cross out what they had written down and change it based on what the defendant does. But if he’s not prepared to fall on the sword and beg for mercy, he may say very little. And he seems pretty determined to maintain his innocence.”

And that seems kind of nice but, if you think about it, it's a juvenile and irrational practice. To say to people, well we'll let you go if you make a show of supplicating yourself before the court is almost medieval, really.

And yet that seems to be what people want. Some sort of public apology. As if individual hurt feelings are what actually matters here. People are pretty small that way. 

I've never been anything near to what one would consider a "friend" of Ray Nagin.  He was elected in 2002 as a political creature of elite New Orleans. Nagin was a product of the popular con at that time which sold people on running government "like a business."  He was a bad mayor pre-Katrina who proved even more spectacularly incompetent at handling the post-Katrina morass.  And on top of everything he turned out to be a foolish and incompetent criminal clumsily accepting small time bribes for often petty reasons. 

There was something that could have been done to prevent Nagin from blundering around for four years after Katrina but we reelected him anyway.  Extracting an "apology" now won't help anyone.  And neither will throwing this thoroughly humiliated and bankrupted person into federal prison for 20 years.

According to the sliding "offense level" chart, Berrigan could give Nagin anything from 10 to 30 years.  Even the low end of that seems unnecessary at this point.