The vagaries of federalism were on display in New Haven, Connecticut, yesterday. A man pleaded guilty to crimes in both state and federal courts: The same acts requiring a bent knee before different sovereigns.
E. Forbes Smiley, III, pleaded guilty in state and federal courts to the theft of rare maps worth millions from some of the world's premiere research institutions, including Yale University. The fifty-year-old map dealer appeared jaunty even in defeat, reportedly sounding almost cheerful in his plea allocution before United States District Judge Janet Bond Arterton.
Why no double jeopardy? Different sovereigns. Never forget that each breath you take in this land of the free subjects you to the scrutiny of two, concurrent, sovereigns.
Smiley is fortunate to have secured the services of Attorney Richard Reeve, a former federal public defender and close student of the law. The manner in which this plea was engineered illustrates why the right lawyer can make a difference.
In the morning, Mr. Smiley pleaded guilty to state charges, where he is expected to be sentenced to an agreed upon sentence of up to five years behind bars. The state will be imposed after imposition of the federal sentence. He will be eligible for parole in the state system after serving fifty percent of his time.
The significance of this timing of these sentences cannot be overstated. The first sentence imposed is the controlling sentence. The federal Bureau of Prisons takes the position that a federal sentence does not begin until the prisoner reaches federal custody. Thus, a prisoner who pleads in federal court to concurrent time running with a previously imposed state sentence runs the risk that the Bureau will not honor the plea deal. In other words, if Smiley were to be sentenced first in state court, he could serve his sentence and then have to start his federal sentence from day one once he reached a federal prison. Does that seem unfair? You bet. But a prisoner recently lost a habeas corpus petition in the Second Circuit trying to force the Bureau of Prisons to honor a plea deal.
In the Smiley case, he will first be sentenced in federal court. Although he faces a maximum of six years there, it is more likely that his sentence under the sentencing guidelines will be in the range of 1.5 to two years. Once that sentence is imposed, he will be whisked to state court, where the court will impose the agreed upon five year term concurrent with the federal sentence. The state system will honor a plea calling for concurrent time.
Of course, I am hoping that the federal judge departs from the sentencing guidelines and throws the book at Smiley, giving him the full six years. I am by avocation a dealer in old books and maps. Smiley took the trust and honor associated with this trade and ground it to dust in the name of greed. He deserves a solid spanking from both sovereigns.