An Emergencing Call for Leniency for Criminal Recividists

The law is rarely kind or merciful to those who commit crime after crime even after being released from prison or while under court supervision. Harsher punishment for prior conviction is built into our justice system, where sentencing guidelines recommend steeper fines, longer sentencing, and fewer avenues for relief for those who continue to commit crimes. People who re-offend even after facing convictions are called “recidivists”, and are often considered a danger due to their likelihood to commit crimes when released.

This is especially the case for violent crime recidivists, whether they have convictions for assaults, sex crimes, armed robbery, domestic violence, and more. When it comes to violent crimes, the main concern is that they will return to society and commit more acts of violence, possibly even worse than what they were convicted for before. This motivates prosecution to push to lock these people up for a long time, if not for life. Judges and juries are rarely sympathetic to repeat violent offenders, so the likelihood of such as person receiving a lenient sentence is quite rare.

However, there are cases that emerge where a certain argument or approach can win over the court, which is what happened in a recent case decided back in April 21, 2020 in the 4th circuit court of appeals, called United States v. Nance.

The reasons why the court showed some leniency were fairly complicated, but as we explain further in this article, are largely due to regarding past crimes committed as a troubled youth with more leniency than those committed as a grown adult.

recividist cartoon, showing convicts rotating in and out of prison from a revolving door
Cartoon on recividism being a vicious systemic cycle

What Happened in United States v. Nance Case?

United States v. Nance was a case that involved a recidivist defendant, Larry Lamar Nance, who was facing drug and firearm related charges and a potentially severe prison sentence due to a very long criminal history. He had a troubled youth, going back and forth living with his separated parents, who both were heavy drug users. He began using drugs at a young age, around 9, starting with marijuana but then graduating to cocaine and heroin use. He developed an addiction to the latter drugs, which along with childhood trauma was likely to have lead him on a path of criminal activity.

His list of past crimes began in 2001, when he was 16. He faced charges or convictions for:

  • Age 16: Possession of a stolen motor vehicle, breaking and entering, larceny after breaking and entering. He plead guilty and was placed on probation.
  • Age 18: Possession with intent to manufacture, sell or deliver cocaine. He plead guilty and was placed on probation.
  • Age 19: While on probation for the above crime, he was charged with burglary and kidnapping. The kidnapping charge was dismissed.
  • Age 20: While on probation for the burglary crime, he committed both conspiracy to commit armed robbery and discharging a weapon into an occupied vehicle. He plead guilty in 2006 and was incarcerated until 2013.
  • Age 20 to 28, while incarcerated: He incurred a total of 79 disciplinary infractions while in prison.
  • Age 29: Incarcerated for marijuana possession.
  • Age 30: incarcerated for possession with intent to manufacture, sell, or deliver marijuana. 

This long list lead up to the charges in question in this case, where in April 2017 he was facing charges for drug and firearm offenses. The charges were for carrying a firearm in furtherance of a drug trafficking crime, to which Nance pleaded guilty. There were also a few other arrests which stemmed from violent incidents, including allegedly trespassing into his ex-girlfriend’s property, pointing a gun at her head, and punching a different woman in the head, but these charges were all dismissed. 

These 2017 charges were once again committed when he was already on probation for prior crimes stemming from his 2015 drug offense. His criminal history showed not just a likelihood to re-offend but that he had little respect for the law even while under probation and supervision of a probation officer.

For his most recent offense in 2017, the United States Probation Offense submitted a “Presentence Investigation Report”, or PSR, which took into account his criminal record to calculate what his recommended sentencing for the 2017 crime should be based on his criminal history and the most recent offenses. The combined recommended sentence for the drug crime and firearm crime totaled to between 81 and 87 months based on that PSR.

Federal prosecution, however, was not convinced by the report’s sentencing range and believed it failed to capture the extent to his criminal past, which included many dismissed violent charges. They recommend for “upward departure and/or variance”, or in other words, a sentencing higher than the guidelines calculation. Their recommended sentence, which accounted for his lack of obedience while under probation and dismissed charges, totaled to a range of 262 to 327 months, or between 21 and 31 years in prison.

Nance had reserved the right to appeal the increased sentencing, so he and his counsel did.

Repealing the Increased Sentencing

Nance’s counsel wanted to push for the PSR’s original sentencing range, rather than the increased sentencing federal prosecutors were aiming for. Arguing this was not going to be easy, as prosecution did have good reason to argue that Nance’s behavior while under supervision and his violent criminal record would make him a danger when released to society.

His counsel needed to be clever in how they approached this case, as prosecution was compelling but the sentence they wanted was indeed severely higher than what the guidelines recommend. They came up with the following arguments in defense:

1. Nance was not on an "Uninterrupted Violent Criminal Spree"

It is easy to look at a recidivist criminal and characterize them as lacking any remorse or ability to change in any of their ways. However, this fails to account for how even though a person can continue to commit crimes, the magnitude and harm of their criminal activity can change. Essentially, while he was recidivist, he was not “similarly recidivist”.

Nance’s counsel argued that this was the case here. While Nance did has a long criminal history that included violent convictions, there was a shift in his activity after he was released from his first long-term incarceration in 2013. According to his counsel, his crimes after that period were only non-violent drug offenses.

By just looking at his conviction history this did indeed seem true. Even though his recent offense involved a firearm in relation to a drug crime, he was in possession of it but did not use it to commit a violent crime.

The court reviewed that aspect of the case and the fact that Nance had a troubled childhood and suffered from drug addiction, which could explain his recidivist behavior related to drug crimes. However, prosecution still pushed for their increased sentencing, noting once again that Nance’s behavior while in custody and on probation were all deeply concerning for his potential to respect the law when released.

2. Past Crimes Were Committed when Young and Still Neurologically Developing

The court was not going to turn in Nance’s favor based on the lone argument that his criminal activity had changed, so Nance’s counsel tried an additional argument.

The argument was that neurological research indicates that the frontal lobe, which is responsible for impulse control, is not fully formed until about age 25. This was particularly relevant to this case because Nance’s violent convictions occurred when he was in his teens and early twenties. They then argued that because of his lack of recent violent offenses, it showed that Nance had become “capable of controlling himself”, and therefore could be rehabilitated.

There were still challenges to this argument, namely that while he did not have recent violent convictions, he did face charges, which were only dropped due to some circumstances, like that a witness did not make herself available to the court.

The appeals court took these arguments into account when deciding their verdict.

The Court's Verdict

Ultimately, the court reasoned to give Nance a sentence that was greater than the range of 81 to 87 months, as his counsel requested, but less than the range of 262 to 327 months as prosecution was pushing. The verdict they decided upon was a sentence of 123 months.

Why they landed upon this number was based on in depth consideration of the circumstances of the case, Nance’s character and criminal history.

The first argument, that his evolution of criminal behavior indicated that he was not likely to commit further violent offenses, was given deep consideration, but largely rejected. They rejected that argument because he was recently convicted for a firearm charge and his action under probation showed a disregard for the law. Even though he did not have recent violent crime convictions, he did display a so-called, “assaultive tendency”.

The fact that Nance did have a difficult childhood and that many of his more serious crimes were committed in his youth at a time when he was still developing was also taken into consideration. This argument was treated as more valid, as some comparable cases in the past showed the court use discretion when weighing past criminal behavior that was from a different period in the defendant’s life. With this and the many other facts considered, they came to the decision of recommending 123 months.

Nance’s counsel still tried to once again appeal the decision for a lower sentence on account that they believe they did not consider the arguments well enough or explain their reasoning, but this last appeal was rejected. The court told Nance:

You’re a very dangerous person, and you have no respect for authority. I do not believe a sentence in the guideline range takes into consideration fully your background and your history and the extent of your criminal history, the likelihood of recidivism, the dangerousness of you.

They further recommended that he need serious help for substance abuse and recovering from his childhood trauma, further stating:

You had some serious things happen to you through no fault of your own as a child. But through fault of your own you are continuing to act against society, against norms. You need somebody to be helping you with mental health treatment.

Why Does This Matter?

This ruling was a departure from what we typically expect when the courts deal with recidivist offenders. The key takeaway is that this case can set a potential precedent for evaluating cases like this in the future. The psychology and neurology of victims of childhood trauma is very complex, and one that we continue to have difficulty grappling with when it comes to enforcing the law.

There are, of course, no guarantees that this defense will carry through to future cases, as every case is different. The reason why we pay attention to unique cases like this, where the courts used a great deal of discretion to come to a decision, is because it allows us to hold the courts accountable to uphold the law consistently and fairly.