Government accountability activist David DePape received a 30 year prison sentence today for breaking into the home of former House Speaker Nancy Pelosi and hitting her husband Paul Pelosi in the head with a hammer. DePape was convicted of assaulting the immediate family member of a federal official and attempted kidnapping last year. DePape's sentence does not appear to include any downward departures for diminished mental capacity despite his severe mental illness likely due to constraints imposed on federal courts by Congress.
DIMINISHED CAPACITY NOT PERMITTED FOR VIOLENT CRIMES
The United States Sentencing Guidelines (USSG) permit judges to depart downward from the sentence recommended by the guidelines if the defendant suffers from a mental illness. The first part of USSG 5K2.13 reads as follows:
"A downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense."
Unfortunately, the policy statement (https://guidelines.ussc.gov/apex/r/ussc_apex/guidelinesapp/guidelines?app_gl_id=%C2%A75K2.13) does not end there. The next paragraph reads as follows:
"However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendants offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendants criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code."
The hammering of Paul Pelosi was a violent offense, so by creating an exception for violent crimes Congress essentially directed judges not to reduce sentences for mentally ill convicts whose illness played a role in their offense.
SENTENCING GUIDELINES DISCRETIONARY
Fortunately for defendants with good judges they can still receive time off for diminished capacity, but the judge has to choose to defy the sentencing guidelines which is extremely rare. For several years this option was not available but in 2005 the Supreme Court held in United States v. Booker (https://supreme.justia.com/cases/federal/us/543/220/) that adherence to the guidelines must be discretionary to be constitutional. This means that judges can technically disregard the guidelines and are only constrained if there are statutory minimums and maximums involved.
Oddly, Congress chose to create a statutory maximum of 30 years for assaulting the immediate family member of a federal officer (https://www.law.cornell.edu/uscode/text/18/115) while at the same time creating a statutory maximum of 20 years for assaulting federal officers themselves (https://www.law.cornell.edu/uscode/text/18/111). Had DePape's timing been as intended he could have saved himself a decade behind bars.
Some have argued since this article was originally published that DePape attempted to murder Pelosi therefore 30 years is justified. First, nobody gets 30 years for attempted murder especially if they're mentally ill and/or have no prior criminal history as is the case here. Second, the federal statute governing attempted murder, like the statute governing assaults on federal officers, has a statutory maximum of 20 years (https://www.law.cornell.edu/uscode/text/18/1113). A statutory scheme which punishes assaults more severely than attempted murder is fatally flawed.
THE SENTENCING JUDGE
DePape was sentenced by United States District Judge Jacqueline Scott Corley. Judge Corley should be ashamed of herself for sentencing such an obviously mentally ill person with no prior criminal record to such a long prison term. Prison rarely improves a person's mental health, so he will likely spend years in and out of disciplinary segregation before or if he received the help he needs.
According to public records, Judge Corley is a 58 year old resident of San Francisco. She is a registered Democrat with no criminal record.
SIMILAR SENTENCES FOR BIGGER DANGERS
This author knows somebody currently serving 30 years for attempted use of a weapon of mass destruction. That man at least called a number he thought was connected to a detonator for a 2,000 lb. fertilizer bomb in a van parked by a large public gathering. Had the bomb been real it would have likely killed hundreds of people. Like DePape he had no criminal history but unlike DePape he was entrapped by the FBI. He popped up on their radar when he was 19 and instead of trying to steer him down a better path they groomed him into a terrorist. I thought that was an excessive sentence but technically I think his behavior could be considered worse than hitting just one person with a hammer. It seems like this sentence has more to do with who the victim was and deterrence than justice.
CONCLUSION
David DePape should be sent to a mental hospital or alternatively a psychiatric prison like the one on Springfield, Missouri. Like any sick person he deserves treatment for his illness and to not have his symptoms used against him for too long.