Sentencing Backlash & Pets Are Still Property

0:00Healthcare doesn't always work great. If you've ever waited on a refill or couldn't schedule an appointment, you get it. That's the kind of stuff Optum is changing. They're using data and technology to integrate patient care, pharmacy, and everything else. So healthcare is connected, not complicated. What's that look like? Cheaper prescriptions that are easier to get and care that looks at the whole person, how you need it. Optum is helping make healthcare work as one for everyone. Learn more at business.optum.com. The thing about AI for business, it may not automatically fit the way your business works.

0:35At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. When you own your own business, you own every decision. Now own the card that rewards you for it. Chase Sapphire Reserve for Business is a pay-in-full card that elevates your travel experience and offers premium benefits that will take your business to the next level.

1:15Sapphire Reserve for Business offers 8x points on all purchases through Chase Travel, 3x points on social media and search engine advertising, airport lounge access, and more. Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. This is Bloomberg Law with June Grosso from Bloomberg Radio. The pushback was swift after Maryland federal judge Deborah Boardman sentenced Sophie Roski, charged as Nicholas John Roski, to just over eight years in prison.

2:04Attorney General Pam Bondi promised the Justice Department would appeal what she called a woefully insufficient sentence, which was well below the minimum 30 years the government had asked for. Other conservative critics of the light punishment doesn't send a strong enough message amid the rise in threats to federal judges. And Senator Ted Cruz, while decrying the violence against judges, quote, particularly fueled by rhetoric by irresponsible politicians, criticized the judge and called for her impeachment. A left-wing Biden-appointed judge sentenced this attempted murderer, this attempted assassin to just eight years.

2:48The Department of Justice asked for 30 years. And that judge downward departed by 22 years. Why? Because this left-wing judge said that the attempted murderer was transgender. In fact, during the day-long sentencing hearing, Judge Boardman spent two hours explaining all the factors that led her to the eight-year sentence, primarily the fact that Roski phoned authorities from the scene, reported the incident, and turned herself in. My guest is former Maryland Federal Judge Paul Grimm, director of the Balch Judicial Institute at Duke Law School. Did it seem like Judge Boardman anticipated that there would be reaction to her sentencing and an appeal, considering that she spent two hours explaining the factors that went into it?

3:43I will say this. Judge Boardman is very diligent and enormously experienced judge. She also spent a considerable amount of time as a federal public defender in the District of Maryland. And so she has done hundreds of sentencings, both as a lawyer and as a judge. So she really knows what goes into what's required under the sentencing guidelines and the statute, 18 U.S. Code 3553. So she knew in advance, of course, because the government filed a sentencing memorandum and the defense filed a sentencing memorandum that the sentencing guidelines, because of the way in which the case was charged with a terrorism connection, enhancement, that the guidelines were 30 years to life.

4:37And she issued a sentence of eight years, perhaps a little bit more than eight years. So she knew that that was either a significant departure or a variance below what the guideline recommendation was. And knowing how careful and thorough Judge Boardman is, I'm sure she expected that if the government thought the sentence was too lenient, that there might be an appeal. And I'm sure that she wanted to make sure that she had dotted all of her I's and crossed all of her T's in explaining and complying with both the procedural requirements of the statute, which means that you calculated the guidelines correctly.

5:21If there was a challenge, if there was an objection to the calculation of the guidelines, and part of the procedural requirement for a judge to sentence is that the judge, you know, goes through the pre-sentence report, acknowledges what the party submitted, if there are any challenges by one side or the other, rules on those, gives the rationale for that. You know, Judge Boardman is an active judge. So during the presentation by the government and the presentation by the defense. She likely asked questions. So Judge Boardman is the kind of judge who's going to let everyone who wants to be heard, be heard fully.

5:59She'll listen respectfully and carefully. She'll ask questions. She'll make sure she understands what the arguments are, and then she will calculate the guidelines. She would then do what the guidelines require is to analyze the sentencing factors that are set forth for a judge to consider under 18 U.S. Code 3553. Tell us about some of those sentencing factors. There are many of them. So you have to talk about the nature and circumstances of the offense, and she did, and she acknowledged it was a very serious offense. You have to look at what kind of a sentence would be respected by the public as being a sufficient sentence for the nature of the circumstances, given the personal characteristics of the defendant.

6:46You have to consider what kind of a sentence would deter this particular defendant from committing future crimes, and that's called specific deterrence. You have to consider general deterrence, what would deter members of the community from doing that, given the number of threats against U.S. judges that have been occurring for well over a decade, but particularly in the last 10 months. You know, what kind of a sentence would be necessary to deter people from making threats against judges, serious offense. You have to talk about the history and characteristics of this particular defendant, whether they have any prior convictions, what kind of convictions those were, what type of offenses they were.

7:25And at that point, you have to consider certain factors that might be specific to the issues such as mental health issues or physical health issues of a particular defendant. You have to consider whether or not a sentence should include certain aspects that will assist in the rehabilitation of a defendant, such as drug treatment, anger management, or, and then when you've gone through all of those, you explain how you ranked and evaluated each factor. This is, of course, comes after you've calculated the guidelines and made a ruling on the guidelines and you've heard from everybody. And then the statute says that you are to issue a sentence which is sufficient, but not greater than necessary to accomplish the sentencing goals of 18 U.S.

8:12Code Section 3553. So that's the procedural part. I'd be shocked if procedurally Judge Boardman did not do all of those steps with great detail. The substantive part is whether or not the judge, in announcing the sentence, either overvalued or undervalued one particular factor over another. That does seem to be where the appeal will likely be focused on. So tell us what that might look like. So if a judge didn't say too much about deterrence, but talked a lot about rehabilitation, then an appellate court might say, well, now, wait a minute. You gave too much emphasis to rehabilitation, not enough emphasis to deterrent or seriousness of the offense or the nature of punishment that would command respect within the public.

9:03And the appellate court will look at the sentence for both procedural and substantive correctness. There is a deferential review standard, and only if there's been an abuse of discretion will the appellate court overrule. So there's just a lot of moving pieces to a sentencing in any case in federal court, but particularly for something like this. There was a significant disagreement between what the defense said was an appropriate sentence and what the government was asking for. The fact that she took the time that she did suggest to me that she did each and every one of the things that she was required to do.

9:41And by that, what I mean, she calculated the guidelines. She discussed what the party said. She resolved any disagreements. She analyzed each of the factors under 18 U.S. Code Section 3553. She explained the weight she was giving to each one. I would be surprised if there was a procedural deficiency in what she said. If there is any significant issue on appeal, it might be more on the substantive one, whether or not some of the factors that she gave weight to and discussed, she gave excessive weight to those factors as opposed to other aspects of the sentencing statute. So that's likely to be an area that will be explored on appeal.

10:21As far as appellate arguments, one would be, as you mentioned, abuse her discretion by not properly balancing the sentencing factors. And one thing that stood out was that she gave credit to Roski for having called the police after deciding not to carry out the crime. She told the 9-11 operator she needed psychiatric help. The judge said, in my 17 years of experience in federal criminal law in the District of Maryland, as a public defender and as a judge, I have never heard of another criminal defendant doing that. Is that something, that kind of determination that the prosecution might use on appeal?

11:03Well, one of the things that you have to look at in terms of a proper sentencing under the sentencing regime is, was there acceptance of responsibility? And clearly there was acceptance of responsibility if a person, I mean, if you go to law enforcement and say, hey, I did this. I have mental health problems. I need help. I did this. I'm acknowledging it. and then pled guilty, those are important factors. Oftentimes, the defendants don't plead guilty. They make the government go to trial and prove the case. So acceptance of responsibility is clearly an important factor. And the fact that Judge Boardman said that in her 17 years in criminal law in federal court, that she had never seen another defendant do that was essentially tantamount to saying that in her 17 years of experience, which is profound, that this was not just simply acceptance of responsibility and acknowledgement of guilt, but to a fairly extraordinary extent.

12:08And that might explain why it was, if that factor weighed heavily on the sentence that she gave, why she valued it and weighted it so much. If the kind of acceptance of responsibility is half-hearted. You know, if somebody says, well, I'm sorry that you didn't like the fact that this crime was committed, that's not a sincere apology. If somebody doesn't plead guilty until after the government has had to respond to motions to dismiss, and after they filed a motion to suppress, and it's been a hearing, and this hearing has been overruled, then, you know, the defendant in that circumstances waited until every effort they could to try to knock out the crime was unsuccessful.

12:52And then, and only then pled guilty, you might characterize that as begrudgingly pleading guilty. And if she believed that this person was one of the most sincere in their acceptance of responsibility and did the most to not put the government to a lengthy investigation and prosecution and motions practice and all of that, then that might be something that she would comment on in order to explain why she gave that factor the weight that she did in deciding her sentence. Coming up next, I'll continue this conversation with Judge Paul Grimm. We'll discuss the rise in threats to federal judges and the deterrent effect of sentences.

13:37You're listening to Bloomberg. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve of the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined.

14:18An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by public investing.

14:48This message is brought to you by Apple Card. Apple Card lets you earn daily cash back on every purchase, every day. Applying the Wallet app on iPhone today. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA Salt Lake City Branch. Terms and more at AppleCard.com. Get the news you need in just 15 minutes. Start your day with Bloomberg Daybreak, the podcast with a global view on the stories that matter. I'm Nathan Hager. And I'm Karen Moscow. Join us each morning for curated stories on current events, politics, business, and foreign relations. Plus one conversation on the day's biggest developments, all in just 15 minutes.

15:24Subscribe to Bloomberg Daybreak for a precise, thoughtful take on the stories that matter. Listen to Bloomberg Daybreak each morning on Apple, Spotify, or anywhere you listen. Maryland federal judge Deborah Boardman sentenced the would-be assassin of Supreme Court Justice Brett Kavanaugh to just over eight years in prison. Sophie Roski, charged as Nicholas John Roski, was arrested near Kavanaugh's Maryland home in 2022 after the leak of a draft opinion of the Supreme Court's opinion overturning the constitutional right to abortion. During sentencing, Boardman gave Roski credit for having called police after deciding not to carry out the crime, saying that otherwise authorities may have never known about the plot.

16:13Conservatives have seized on questions that the judge asked about treatment options for Roski in a male federal penitentiary as she's a transgender woman. I've been talking to former Maryland Judge Paul Grimm, a professor at Duke Law School. Threats against federal judges, as you mentioned, have risen dramatically, with this year on track to become a record year for such threats. And the government here argued that a harsh sentence was necessary to deter further threats or attacks against judges or other public officials. What role does the impact of a sentence beyond the defendant have in a sentencing?

16:56That's a great question. You know, the people who study criminal law, there's enough writing that if you stack them all, the articles and the books, one on top of another would probably equal a pretty good sized skyscraper. You know, the theory of criminal sentencing that goes back decades and decades and decades is that what do you give a criminal sentence to do? And there are multiple theories. One is you could give a sentence that will deter that particular defendant and other similar defendants from committing crimes of that nature in the future. One of it is to rehabilitate the defendant.

17:39You sentence them so that they have a period of imprisonment, and then you put things in place to make sure that when they finish that, that they have the skills and the likely avenue to succeed and be law-abiding. That's certainly in the public interest. And then another one is that you're just doing it to punish for retribution. So there are competing theories. Some people say, well, no, it shouldn't be this theory, it should be that theory. But there's a lot of debate about whether or not specific deterrence and general deterrence actually are effective in doing that. So let me give you an example.

18:14If you have a crime that was committed in the heat of passion and this person's anger or hatred was inflamed and then they did it, there's a lot of research that suggests that the deterrence is not that great because if you're reasoning the idea of that, well, if I send this email threatening this judge, maybe I'm going to get a 30-year sentence so I won't do it. That's the theory. But why do people send those emails? And one of the reasons why there's so many threats against judges is that for the last 10 years, at least, and specifically in the last 10 months, there have been unprecedented amounts of threats against judges.

19:01And the Marshal Service, I think the last data that I saw was that as of September, there were over 500 credible threats that the Marshal Service found against federal judges, and that somehow more than 300 judges, federal judges have been threatened. You know, there are only about 700 federal judges in the entire judiciary. So if 300 have been threatened, then that's almost half of the sitting judges have been threatened. Then you go back and say, well, who's doing the threats? And when you see the kind of language that political figures and commentators have been using, the kind of language that they are accusing judges who are just simply trying to do their job of being traitors or radical or extreme or unpatriotic or treasonous.

19:50If you look at footnote two of the opinion issued by the U.S. district judge who dismissed the government's lawsuit against all the judges of the U.S. District Court for the District of Maryland, in that, the judge said, you know, in the last, you know, few months since the beginning of the year, either public officials or representatives of public officials have accused federal judges of the following and listed about seven or eight of very extreme language used to describe federal judges in very extreme ways and found that it was essentially a concerted effort on the part of the administration to do that.

20:28That's a finding of a federal judge in an actual case. And that was a judge appointed by a Republican president. So what I'm saying is, is that if the government as an entity is concerned about preventing threats against judges, and you're trying to find the most effective way of doing that, then, you know, reasonable minds can disagree about whether having one 30 year sentence for a person with mental health who has no significant prior record of criminal activity is certainly violent activity with mental health issues, whether that's going to deter or whether perhaps the administration should stop making these personal, extraordinarily emotional attacks against judges if they disagree with the judge's rulings, which is going to be more effective in the long run.

21:19Well, you know, some people would say you need a belt and suspenders doing both. But if the Department of Justice was serious about deterring threats against federal judges, then they would encourage the spokespeople within the Department of Justice, as well as others within the government, to stop using the kind of intemperate incendiary language that has been used repeatedly in the last 10 months to vilify and intimidate federal judges. Judges have a lot of discretion in sentencing. So what does it take for a federal appellate court to reverse a judge's sentencing decision. I know the Fourth Circuit did vacate a 17-day time-served sentence that Judge Brinkema handed down.

22:07Now, that was a difference between a 17-day time-served sentence and the guidelines that call for 16 years to 19 years. And this case will also be decided by the Fourth Circuit. I mean, is it unusual to have a sentence reversed? Well, let me put it this way. It's not unusual. The appellate court, if they do the two-step analysis, procedural and substantive, and they find that there was a failure in either one or the other, you know, if it's a procedural defect, then of course the judge didn't do what was required. If the judge does do all that's required, but then the appellate court feels substantively that the judge gave too much credit on one factor but not another, you know, that obviously in the one that you made reference to with Judge Brinkema.

22:52Okay, so 16 to 19 and a half was the guidelines recommendation. And she gave 17 days time served. And the Fourth Circuit said that was an abuse of discretion. She resentenced. And I think the resentence was to like three years. Yeah, three years. It's still a significant departure below the, you know, 16 to 19 year. And remember, these are guidelines, you know, they're not mandatory. And you had a United States Supreme Court say that if the guidelines were interpreted as mandatory, that there may be a separation of powers, violation of the Constitution. And in order to preserve the structure of the sentencing guidelines, they should be interpreted as discretionary.

23:33Discretion has to be used in a way that's not abusive. But, you know, Congress has the ability, if they wanted to say that making a threat against a federal judge was punishable by a mandatory sentence of 15 to 20 years, then they could certainly do that. Congress has not done that. And so the way in which that sentencing of 30 years to life came out was a function of guidelines and certain factors in that. And, you know, Even after a reversal, it doesn't mean that the judge lacks the discretion to be able to depart below what the guidelines recommendations are. If they believe that a guideline sentence would be more than what's sufficient, but no more than necessary to accomplish the overall goals of federal sentencing.

24:19The appellate court will be mindful of the nature of this. It's not insignificant that a Supreme Court justice was the one threatened. But, you know, trial court judges are getting threatened constantly. And I would say how many of those 500 plus threats are against Supreme Court justices as opposed to trial judges? There's just an extraordinary large number of these threats coming down the pike with language that is so intemperate from people who are in high positions in government who have traditionally had more moderation in the way in which they discuss this. So there's a lot of interest in this.

24:56The panel that gets it will, I'm sure, do a very thorough job of going through it. I can tell you this, there will be plenty of appellate briefing by both the defense and the government. And, you know, there may even be amicus briefs by various groups or entities that think that they have an insight that would help the court in deciding the appeal. You're right. This is a high profile case. And I suspect that George Boardman was aware that it was high profile from the get go. and that's probably why she was as careful as she was in her ruling. This will be a closely watched appeal. Thank you so much, Judge Grimm.

25:32That's former federal Judge Paul Grimm of Duke Law School. Coming up next on the Bloomberg Law Show, pets are treated like children in divorces in New York, but not so in other areas of the law. I'm June Grosso and you're listening to Bloomberg. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500.

26:11Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve of the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC.

26:50Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. This message is brought to you by Apple Card. Apple Card lets you earn daily cash back on every purchase, every day. Applying the Wallet app on iPhone today. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA Salt Lake City Branch. Terms and more at applecard.com. The Bloomberg Sustainable Business Summit returns to Singapore on July 22nd. Our fifth annual Asia-Pacific Summit will explore how business and finance leaders are shaping the next phase of globalization by strengthening resilience and driving a multi-speed energy transition across Asia's diverse markets.

27:31Join us for solutions-driven discussions and networking opportunities. Thank you to our summit advisor, Bangkok Bank. Learn more at BloombergLive.com slash SBS dash Singapore. You may think of your dog or other pets as a cherished member of the family. After all, they often have designer clothes, special meals delivered, and toys that any kid would love. But even though New York law has come a long way in recognizing pets as part of the family when there's a divorce or an accident, they're still treated as property in the family will. My guest is Suzanne Thaw, a trust and estates lawyer. In most states, how are our pets treated?

28:16Are they treated as personal property or something else? For longstanding principles, pets have been treated as some form of personal property. And certainly in New York, pets are treated as tangible personal property. So I'm an estates lawyer. I oftentimes have special provisions for pets, but they're within the article that's generally they covered tangible personal property that covers things like your furniture or valuable artwork or antiques. And I definitely do have clients that take offense to that. But unfortunately, in New York, pets are personal property, like your furnishings. And that is the trend in most states is seeing pets as a form of personal property.