Is White House fence jumper getting a pass?

My latest column on CNN Opinion: at Law Danny Cevallos on White House fence jumper


(CNN)Prosecutors have asked a federal judge to sentence Omar Gonzalez, who scaled a White House fence in September, to almost two years in prison.

The reaction from the public and lawyers alike was similar — it feels like a light sentence.

But federal court is generally not the place where you hear about a “slap on the wrist” type of sentence. Quite the opposite — stories about federal sentences resemble mournful dirges about banishment and oblivion.

For example, there’s a formerly convicted felon who got 15 years for possessing shotgun shells. There’s a man with no history of drug dealing who received a 25-year mandatory minimum for selling his prescription pain pills to an undercover informant.

Unlike state and local courts, federal court is the Thunderdome.

The U.S. Sentencing Commission is an independent agency in the judicial branch of government. It establishes sentencing guidelines for federal courts directing the appropriate form and severity of punishment for federal offenders. Sentencing judges, while not bound to apply the guidelines, are required to calculate and consider them when sentencing.

So how does sentencing actually work? In both state and federal courts, the algorithm of sentencing is at its core a function of: one, the gravity of the offense you were just convicted of, and two, your prior criminal record. After that, a broad spectrum of aggravating and mitigating factors can be presented to the court.

While sentencing in federal court is designed to be formulaic, to jaded defense attorneys that formula usually feels like — start at 120 months. Then, add 240 months. Then, tell client to kiss his family goodbye.

Is White House fence jumper getting a pass

Defense attorneys have long criticized the federal sentencing guidelines as draconian. There’s a reason why so many cases in federal court result in plea agreements — the risk of being convicted at trial and sentenced to the equivalent of a one-way trip to Mars is just too much for most defendants to stomach. The choice to plead guilty or go to trial is often really a Hobson’s choice, i.e., no choice at all.

That’s why everyone — civilians and attorneys alike — probably thought the government’s sentence of Omar Gonzalez seemed light. But if you calculate the prescribed guidelines, the prosecution’s recommendation is actually on the high end.

In a world dominated by oppressive mandatory minimum sentences, it turns out that rushing to the White House with a weapon and laying your hands on federal officials trying to stop you from rushing the White House … is not as serious as other federal crimes.

At least according to the Sentencing Commission and Congress. Now Gonzalez was aided by the fact that he pleaded guilty and accepted responsibility, which can get you a decent reduction at sentencing. But otherwise, the sentencing range for this Army veteran is only 15 to 21 months of imprisonment, and that’s even with Gonzalez’s prior criminal record.

If you think the fence jumper’s sentence is light, don’t blame the U.S. attorneys. They asked for a sentence at the top of the guidelines, which means they asked for the most time within the prescribed range of months.

You could blame Congress for the light sentence and guidelines, but there were certainly enough federal statutes available in this case. The government dropped several of them in exchange for Gonzalez’s plea agreement.

When a federal judge hands out a double-life sentence for mailing 5.2 grams of LSD to a buddy, we don’t bat an eye. In federal court, we’re surprised when a sentence doesn’t eat up at least half of one’s natural life.

Full disclosure: I’m one of those criminal defense attorneys who has had his heart broken by federal sentences handed out to his clients. It makes practicing in federal court a harrowing, sometimes soul-crushing endeavor. Federal court is not for the faint of heart.

Maybe Gonzalez’s sentence was appropriate. Maybe it just feels light because we’re used to all the other seemingly interminable federal sentences. Then again, if Gonzalez’s sentence fails to deter the next White House fence jumper, perhaps it was indeed not harsh enough.

Snakes and church vs. state

(CNN) — The recent death of the “snake-handling” pastor of a small Pentecostal church in Kentucky has raised an age-old conflict between church and state.

Jamie Coots, the pastor of the Full Gospel Tabernacle in Jesus Name in Middlesboro, Kentucky, died after being bitten on his right hand by a rattlesnake during a weekend church service where he was handling rattlesnakes willingly, it seems.

It has been reported that the late pastor’s son Cody Coots has continued the snake-handling tradition even after his father’s death.

People handle snakes at church for the same reason that people do lots of things: the Bible tells them so.

“And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover.”
Mark 16:17-18

This biblical passage is the genesis of serpent-handling for churches of the Holiness movement and the Pentecostal Church of God. For the faithful, those two verses are the authority for dancing with or passing around poisonous snakes during church services. Moreover, if bitten, they are likely to refuse medical treatment and rely upon God to heal them. There’s just one problem with this Biblical authority. Another authority, known as the Commonwealth of Kentucky.

In Kentucky, the practice is illegal.

Well, barely.

Under the applicable section KRS §437.060, any person who displays, handles or uses a snake in connection with any religious gathering shall be fined $50 to 100. Hardly a capital offense. The Kentucky legislature has sent a message: poisonous snake-handling is marginally illegal — but not as illegal as drugs or other crimes. The legislature’s assigned penalty appears to fall somewhere between a speeding ticket and an overdue library book.

This illegal practice persists so openly that a reality TV show flouts the law by filming a crime in progress. When a network has a series based primarily on filming people breaking the law in your state, it’s fair to say your law has lost some of its bite.

Ultimately, the issue is whether a state even has authority to regulate a practice that is primarily faith-based. The First Amendment to the United States Constitution declares “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The 14th Amendment, in turn, prohibits state legislatures from doing the same.

However, equally as formidable is the state’s constitutionally reserved “police power.” The name itself is a misnomer; the power is much more than your local police officer’s ability to make an arrest. The states’ traditional police power is their exclusive authority to regulate the public health, safety and morals of their residents.

Kentucky’s authority to outlaw snake-handling derives from this police power. The issue here is whether a state has the power to regulate religious activity; so the two constitutional authorities meet head-to-head.

In Jones v. City of Opelika, the Supreme Court addressed the conflict between freedom of religion and the police power of a state.

The court articulated an important but still misunderstood concept about religious freedom: the First Amendment embraces two distinct concepts — the freedom to believe and the freedom to act.

The first is absolute, but the second cannot be absolute. This makes sense.

Your thoughts alone, without speech or any action, are never criminal, even if of the most prurient, vile nature (at least for now — once Apple figures out an app to download your thoughts, they may someday be criminalized).

Your conduct, on the other hand, can be regulated for the protection of society. While citizens of the United States have an unlimited right to our religious beliefs, our right to act within those beliefs is tempered by a state’s duty to protect its citizens.

In Lawson v. Commonwealth, Kentucky’s Supreme Court considered a direct challenge to its snake-handling statute, using the guidance of the Supreme Court in the Jones case. The court held that the state could properly regulate the time, place and manner of religious exercise — such as passing snakes around at church — where the regulation is necessary for the safeguarding of the health, good order and comfort of the community.

Legally, Kentucky’s interest in protecting its residents outweighs a Kentuckian’s interest in celebrating his religion by handling rattlesnakes. According to the courts, the state can prohibit this practice.

But Kentucky still barely criminalizes the practice. Handling poisonous snakes is potentially more dangerous than other regularly prosecuted activities, such as drug use. Ask yourself: Would you rather your child be at a party where someone is passing around a water bong or a water moccasin?

Whatever the reason for not aggressively prosecuting the already-illegal practice, the fact is that it presents a known danger. Kentucky is one of the states that has seen fit to criminalize the practice, and it has the power to do so.

Unfortunately, if Kentucky doesn’t exercise its police power and impose stricter penalties, then the snakes will continue to impose their own punishment, which is often the death penalty.

Originally posted at