Free Sentencing Statement - District Court of Colorado - Colorado

Case 1:04-cr-00066-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CASE NO. 04-cr-00066-EWN UNITED STATES OF AMERICA, Plaintiff, v. KEVIN MICHAEL SHANAHAN, Defendant. __________________________________________________________________ DEFENDANT SHANAHAN'S SENTENCING STATEMENT __________________________________________________________________ Defendant Kevin Michael Shanahan, through his counsel, Warren R. Williamson, and the Office of the Federal Public Defender, files this statement, or memorandum, in connection with his upcoming sentencing. Objections to Presentence Report There are none. Background The probation officer has done a terrific job of summarizing not only the background of the offense, but Mr. Shanahan's background as well. There is no point in trying to improve on her efforts.

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From the Pre-sentence Report (PSIR) and this Court's own history with Mr. Shanahan as it relates to his pretrial treatment and evaluation at FMC Springfield and MDC Los Angeles, it is apparent that he is mentally ill. The diagnosis is

schizoaffective disorder, described as "chronic," a condition "which will require continued treatment with psychiatric medication." U.S. Bureau of Prisons (Springfield) Forensic Report December 21, 2005.1 As the Probation Officer noted, "it is clear . . . that [the defendant] has had a mental illness for most of his adult life." PSIR ¶153. The disabling, or obvious, aspects of Mr. Shanahan's illness can be traced at least as far back as 1985 when his sister, Patty Kirsch, had him admitted to the VA Hospital in Long Beach, California. PSIR ¶ 101. Mr. Shanahan's mental illness has been addressed previously in the federal criminal justice system. When he was convicted of bank robbery in Los Angeles, California in 1988, he was sent off for what was called a "study," under since-repealed section 4205(c) of Title 18. PSIR ¶ 57. After the study was completed, Mr. Shanahan was returned to Los Angeles and a received a sentence of 81 months.2 Id.

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Hereafter, Springfield Report.

This sentence, 71 months for the bank robberies with 12 months consecutive for two contempt citations, would have been imposed pursuant to other since-repealed sections of 4205, et al., pursuant to which the defendant was eligible for parole. 2

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When Mr. Shanahan got near his release date in 1995, it appears the Bureau of Prisons invoked the provisions of 18 U.S.C. § 4246(a), which allows them to delay an inmate's release if they believe the inmate is suffering from a mental disorder "as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another." This would explain the later periods of "conditional release" between 1995 and 2003, referred to in the Presentence Report. PSIR ¶¶ 57, 66-69. It was during this time period, especially after being supervised by U.S. Probation Officer Thomas Burgess in Bakersfield, California, that Mr. Shanahan had some success. As Mr. Burgess explained, this was due to "lots of conditions of release," conditions that included residence in a group home. PSIR ¶¶ 68-70, 86-87.3 It was because of his successful adjustment that, in March of 3002, Mr. Shanahan's supervision was terminated. PSIR ¶¶ 57, 69. What to do The real question is what to do with this 46 year old mentally disabled man. One option is to sentence him to prison. The low end of the (advisory) guideline range is 51 months. With good time, this would end up being about 43 months. Mr.

The home was Orient Living in Bakersfield. PSIR ¶ 86. Ms. Patty Kirsch also observed that her brother "did fine there," and that "[h]e does really well with structure, like a halfway house or group home." Id ¶ 87. 3

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Shanahan will have 27 months of pretrial credit by the date of sentencing, meaning he would have about 16 months left to serve before mandatory release. Typically the last 10 per cent of this (about 5 months in his case) would be spent in a halfway house. This means that Mr. Shanahan could be in prison for as little as 11 more months. During his time in prison, wherever he is designated, one hopes he would continue to receive mental health treatment. If this approach is taken, it would, given what Ms. Ricca has discovered about Mr. Shanahan, be best if supervised release were conditioned on residence in a halfway house coupled with mental health and substance abuse treatment. See PSIR ¶¶ 141-145. With these conditions in place, there is some reasonable assurance Mr.

Shanahan would be in the sort of structured setting, with the sort of monitoring and treatment, in which ­ or as a result of which ­ he seems to do best. The problem with this approach is that the maximum period of supervised release is three years. A second option would be to place Mr. Shanahan on probation for five years. While the guidelines, specifically U.S.S.G. §5B1.1, say he is ineligible for probation, being in the wrong "zone," the guidelines are no longer mandatory. United States v. Booker, 125 S.Ct. 738 (2005). By statute, Mr. Shanahan is eligible for probation. See

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18 U.S.C. 3559(a)(3) and 3561(a). (Since the instant offense is a Class C felony, probation is an option.) The main advantage of a probation sentence is that the total period of supervision is five years, not three. This means Mr. Shanahan would be under federal "jurisdiction" (meaning prison and supervision) even longer from the date of sentencing than if he received 51 months in prison. Again, 51 months translates to about 11 more months inside, followed by about five months in a halfway house as a Bureau of Prisons placement, followed by three years of supervised release. This totals 52 more months combined prison and supervision, versus 60 more months if he is placed on probation. Of course the Court can condition the 60 months of probation to include halfway house residence, mental health and substance abuse treatment, etc., just as it could supervised release. A secondary benefit to this approach is that it does not use prison as a mental health facility. Since state funding for in-patient mental health facilities has dwindled to almost zero in the last few decades, due to what Fred Cohen, professor emeritus of law and criminal justice at the State University in New York, Albany, calls the deinstitutionalization movement, prisons have increasingly become de facto mental institutions. ("Prisons have become the new asylums, the new state mental hospital facilities." Quoting Dr. Gary Beven, Chief Forensic Scientist, Ohio

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Department of Rehabilitation and Correction, Frontline, The New Asylums. www.pbs.org/wgbh/pages/frontline/shows/asylums (Visited April 10, 2006)). While this may be a practical reality, in this case there is a strong argument that using prison as the first option for Mr. Shanahan is not the best choice.4 It is important in deciding what sentence to impose to keep in mind that despite the technical definition of bank robbery to the contrary, Mr. Shanahan's was not a violent offense. (18 U.S.C. §3553(a)(1) requires the Court to consider the nature and circumstances of the offense.) Besides the fact he was unarmed, perhaps the best evidence of the non violent nature of the offense conduct is that the teller, Ms. Martinez, said she felt sorry for Mr. Shanahan, and thought he was sincere when he apologized to her after the robbery. PSIR ¶ 22. Also, there is the statement of the bank manager, Mr. Courtney, who escorted Mr. Shanahan back inside. Not only did he believe Mr. Shanahan was neither aggressive nor "dangerous," he felt sorry enough for him to give him a Krispy Kreme doughnut and a coffee, and told him he could keep five dollars of the $644.00 that was stolen. PSIR ¶ 23-24.

The Probation Officer inquired about the Veteran's Administration's ability to provide long term care, and was told this was not possible. PSIR ¶ 89. 6

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In other words, the nature of the offense conduct does not suggest a strong need to jail Mr. Shanahan to protect the public, especially if the elements are in place that make it more likely he can succeed on the outside.5 Conclusion In the post Booker world, courts must consider the factors outlined in 18 U.S.C. §3553(a) in imposing a sentence that is sufficient but not greater than necessary to comply with the purposes in subsection (a)(2). One consideration is what sentence the now advisory guidelines call for. 18 U.S.C.§3553(a) (5)(A). There is no dispute that the guidelines suggest a sentence in the 51 to 63 month range.6 But, considering the other relevant factors, a sentence of the maximum period of probation, conditioned as recommended by the probation officer at

That the public will be "safe" with properly structured supervision is best illustrated by Mr. Shanahan's history when he is out of jail. He did well when he was living in a halfway house setting, and was receiving both mental health and substance abuse treatment. He did poorly when he was not. Under the Guidelines, the defendant would not be eligible for a downward departure for diminished capacity because of the nature of the offense, even if no actual violence was involved. See Andrew M. Campbell, Annotation, Downward Departure under § 5K2.13 of United States Sentencing Guidelines, 1995 WL 900326, 128 A.L.R. Fed. 593 §§ 20-24. However, the permissible factors justifying traditional departures differ from--and are more limited than--the factors a court may look to in order to justify a post-Booker sentence at variance with the guidelines. See, e.g., United States v. Brady, 417 F.3d 326, 333 (2d Cir.2005) (explaining that post Booker, a lower sentence may be appropriate "even when a downward departure is unavailable").
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paragraphs 142-145 of the PSIR, would, under the unique circumstances of this case, be "sufficient, but not greater than necessary to meet the purposes set forth in 18 U.S.C.§3553(a)(2). This sentence would reflect the seriousness of the offense, which, again, was non violent. It would afford adequate deterrence since the defendant seems to be deterred from criminal behavior when he is under strict supervision and treatment. It would, for the reasons discussed above, protect the public. It would be at least as helpful as a prison sentence in helping Mr. Shanahan receive needed medical (meaning psychiatric) care. And, on a less important, but nonetheless practical note, if Mr. Shanahan is in a halfway house, he may be able to start receiving his disability benefits again, which would allow him to help pay for his stay there. The ideal circumstance would be for Mr. Shanahan, whenever he is released to supervision, to return to where he had his last success, Bakersfield, California. He is fortunate to have a probation officer there who has worked with him before. His brother, Tim Shanahan, lives in Bakersfield, and his sister, Patty Kirsch, who is still supportive, lives not far away. In sentencing Mr. Shanahan, the Court is dealing with a man who gets in trouble not so much because he is a criminal "type," but because of the effects of

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untreated mental illness, exacerbated at times by substance abuse. Because of this, it is respectfully suggested that the sentence in this case, considering the circumstances that make it as unique as it is, should be more focused on treatment than punishment.

Respectfully submitted, RAYMOND P. MOORE FEDERAL PUBLIC DEFENDER

/S/ Warren R. Williamson Warren R. Williamson Office of the Federal Public Defender 633 17 th Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 FAX: (303) 294-1192 E-mail: [email protected] Attorney for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on April 10, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: David Conner, Assistant U.S.Attorney email: [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Kevin Michael Shanahan Reg. No. 88380-012 Federal Detention Center 9595 W. Quincy Ave. Littleton, CO 80123

/s/ Warren R. Williamson Warren R.Williamson Office of the Federal Public Defender 633 17 th Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 [email protected] Attorney for Defendant

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