McLEAN Travail Sentencing Memo
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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA vs. TRAVAIL MCLEAN : : : CRIMINAL NO. 3:12CR68 (AVC) September 14, 2012
DEFENDANT’S MEMORANDUM IN AID OF SENTENCING Defendant, Travail McLean, respectfully submits this memorandum as an aid to the Court for sentencing and in support of a sentence of probation. I. Introduction As the PSR states in paragraph 56, “the Court may wish to consider whether a sentence within the guideline range is more than necessary to meet the purposes of sentencing detailed at 18 U.S.C. § 3553(a).” While defense counsel understands the government’s position that Mr. McLean needs a “wake up call,” this memo intends to show that Mr. McLean’s case is not an easy one as he lacks the ability and support to become a productive citizen as quick as all parties would like; that he has several serious cognitive impairments as well as environmental impediments which explain why his progress has been slow; that he has indeed shown some progress by attending the MAAS drug treatment program and remaining compliant while on electronic monitoring; and that the federal felony conviction coupled with probation can and will specifically deter him, adequately reflect the seriousness of the offense, justly punish him, and best foster his rehabilitation. Although Probation Officer Patrick Norton filed a Petition for Action on Condition of Pretrial Release seeking a summons ordering Mr. McLean to appear before Magistrate Smith and detailing that Mr. McLean failed to refrain from smoking marijuana; failed to attend adult education or obtain employment; and missed some sessions at the MAAS drug treatment program, Magistrate Smith did not find that incarceration was warranted. After considering the Report of Psychological Evaluation attached to this memorandum as Exhibit A, and discussing Mr. McLean’s situation in court, Magistrate Smith ordered that Mr. McLean’s conditions of release be amended to include home confinement with electronic monitoring. Based on a call with Senior Probation Officer Steve Lambert, Mr. McLean’s
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new pretrial services officer, Mr. McLean has been overall compliant with the home confinement. He has also been attending his drug treatment counseling sessions at MAAS. In short, before Mr. McLean has obtained even one job, he has now put himself in the difficult position of having a federal felony conviction for life. It is tragic because, in a sense, he has now knocked himself out of the mainstream before even trying to enter it. Put another way, the felony conviction alone will be a major punishment throughout his life. And indeed this prosecution itself has been a wake up call to him, despite not being able to completely abide by the conditions of pretrial supervision. Given some time and continued work, however, there is hope that Travail can stop smoking marijuana, treat his depression in a healthy way through psychotherapy, and gain vocational training. As Senior Probation Officer Lambert stated to defense counsel, Job Corps might provide both the right amount of structure and a learning environment of his peers. Mr. McLean respectfully requests that the Court give him a chance to succeed on probation before turning to incarceration. II. Mr. McLean’s history and characteristics A. Dr. Scott’s evaluation
Mr. McLean was evaluated by psychologist and Yale Assistant Professor Melanie C. Scott, Psy.D. She met with Mr. McLean for a total of six hours in order to determine his personality characteristics and cognitive functioning. Mr. McLean is the only child of the non-marital union of King McLean and Ernestine Johnston. Id. at 2; PSR ¶ 27. It is unclear whether Mr. McLean’s mother and father ever lived together but by the age of about three or four, after his father discovered bruises and scars on Travail’s body, King McLean removed Travail from his mother’s apartment, and Travail has lived with his father ever since. Exhibit A at 2. Mr. McLean and his father initially lived with Mr. McLean’s grandmother (his father’s mother) in her apartment in New Haven. Id. Travail and his grandmother were very close and when she died of a heart attack when he was 12 years old, he was devastated. Id. In many respects, he has never adequately recovered from this loss. He and his father then moved into their own apartment, and Travail reported to Dr. Scott feeling lonely after his grandmother’s death. Id. Mr. McLean’s father has worked as a custodian in Southbury, Connecticut -2-
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for years, leaving at 3:00 a.m. and returning at 6:00 p.m. See Exhibit B, King McLean’s letter to the Court. When the two lived with Travail’s grandmother, he was supervised by her but after she died, and his father was at work, he spent a great deal of time unsupervised wandering around his neighborhood with friends or alone. Exhibit A at 2. Although his mother also lived in New Haven, she was nearly completely absent in his life. Id. at 3. Mr. McLean was placed in special education in kindergarten due to extremely poor verbal skills. Id. He continued as a special education student into the fourth grade where he was shuffled into “speech and language only services” which only provided support for his expressive and receptive language deficits for 30 minutes per week. Id. at 3-4. “While in speech and language services, records indicated that he rarely participated in class without prompting, rarely worked independently, rarely followed written directions, rarely completed assignments, and rarely made up work when he was absent.” Id. at 4. Strikingly and tragically, despite being repeatedly invited, his parents never attended any of his PPT meetings to discuss his intellectual impairments or to advocate for appropriate services. Id. Dr. Scott’s report lists, in chart form, the shocking number of absences from school from fifth through the ninth grade. Id. He attended ninth grade initially at Hillhouse High School and had 118 absences before transferring to New Horizons High. In the 10th grade, he had 104 absences before being placed back in the ninth grade where he then had 112 absences. Failing the ninth grade, he was then forced to repeat it. He then had 108 absences the next year before dropping out. Id. at 4-5. Dr. Scott administered a full battery of cognitive tests and found that Mr. McLean obtained scores below the Extremely Low range of intellectual functioning, particularly in the areas of verbal concept formation, verbal language, and reasoning. Id. at 5-6. Regarding her psychiatric assessment, she found him to be mildly depressed, experiencing passive suicidal ideation, and having a thought process lacking in detail and maturity. Id. at 6-7. He was experiencing sleeping problems, irritability, loneliness, feelings of emptiness, and trust issues. Id. at 6. Regarding substance abuse, Mr. McLean smoked marijuana daily for six years prior to his arrest, -3-
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with the longest period of abstinence only one week. Id. at 7. Dr. Scott concluded that he has smoked marijuana out of boredom and to self medicate symptoms of depression. Id. at 7-8. In conclusion, Dr. Scott offered the following opinions: (1) Mr. McLean experienced the loss of the most stable relationship in his life – the loss of his grandmother, and from that point forward he has had continuous periods of instability. (2) He was physically mistreated beginning at age three, and he believes that those closest to him have hurt him. He thus has trust issues and feels he has no one to confide in, not even his father. (3) He has been left with no supervision for years while his father worked long hours out of the city. He is a lonely person with distant family relationships and insecure friendships. Mr. McLean has been easily misguided by friends and has carried a conflicted/underdeveloped belief system about life and law enforcement based on limited talks with his father. (4) Mr. McLean has serious deficits in his verbal abilities as well as nonverbal reasoning and inductive reasoning. It is thus not surprising, Dr. Scott opines, that he began skipping school and struggled academically. His educational record highlights a complete lack of parental supervision, support, and advocacy; and (5) He has symptoms consistent with mild depression and passive and fleeting suicidal ideation. Id. at 9. Lastly, Dr. Scott offered the following recommendations: (1) Mr. McLean would benefit from educational and vocational support. (2) He would benefit from regular, individual psychotherapy to address his current symptoms of depression and to discuss healthy means of coping versus marijuana use. Psychotropic medication should also be considered; and (3) Mr. McLean would also benefit from a mentor – someone to help him identify his life goals and act as a role model. B. King McLean and Ernestine Johnson’s letters to the Court
King McLean describes his son (“Little T” as he is known in his neighborhood) as having a kind -4-
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heart, and explains how Little T helps out people in the neighborhood, whether it be walking someone’s dog, helping an elderly neighbor with her groceries, or even cutting the lawn for a guy who’s going blind. See Exhibit B. He describes their neighborhood as one that is increasingly dangerous where shootings sometimes occur and where drug dealing is commonplace; and yet, despite that environment, King writes that he can go to sleep at night without worrying that Travail is involved with drug dealing and violence. Id. He concludes his letter stating that he is blessed to have Travail, and that he knows in the bottom of his heart that Travail is sorry for what he has done and that it will not happen again. Travail’s mother describes him as very quiet, humble, and “with a good spirit.” She describes his simple interests: he enjoys playing video games, watching TV, and listening to music. She goes on to state, “I realize that this is a very serious matter but I do not believe he gave it much thought. We talk[ed] about this [and] I made it clear to Travail how [disappointed] I was. I know my son would not harm any one.” See Exhibit B. III. The nature and circumstances of the offense The most aggravating factor, and one stressed by the government, is the number of times Mr. McLean made the false bomb threats. And although the city had to respond each and every time, when one listens to the calls there are times when the police dispatcher questions Travail and essentially says, “it’s you again, would you stop calling.” This crime should be viewed as committed by an extremely limited, immature, isolated child. And although Mr. McLean was 18 years old when he committed the crime, his cognitive makeup is at a much younger level. This was a bored child making pranks. He never had a bomb or plan; he never intended to hurt anyone; and he never directly threatened a person to his or her face. All of the hoaxes were made by calling police dispatch. IV. The § 3553(a) factors are all served by a sentence of probation A. A sentence of probation would adequately reflect the seriousness of the offense; justly punish Mr. McLean; and promote respect for the law
For this, Mr. McLean’s first criminal conviction, the Court should start with a probationary sentence. Given Mr. McLean’s serious cognitive limitations in verbal and reasoning abilities, as well as his immaturity, there is a real concern that he would be extremely vulnerable to abuse in prison. And -5-
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at age 19, he would be one of the youngest inmates there; only about 0.7% of federal inmates are below the age of 21. See Bureau of Justice Statistics, FY 2007 Prisoners in Federal Prison at Year’s End. In short, a prison sentence, however short, could do more harm to Mr. McLean thus causing him to be less stable and more susceptible to foolish behavior. Probation with conditions requiring treatment, as well as perhaps community service, would best promote respect as the community places confidence in a justice system where individualized sentencing occurs. Moreover, the Court must seriously consider Mr. McLean’s age and intellectual impairments. Apart from his cognitive impairments, an 18-year old’s brain is not fully formed. It is now wellestablished that teenage and young adult brains are different from mature adult brains, and that their decision-making processes are less developed. Consequently, even when they are guilty of criminal offenses, young people are arguably less culpable than their older adult counterparts. The Supreme Court has identified three major areas in which juvenile defendants under 18 differ from adult defendants: (1) Juveniles demonstrate“[a] lack of maturity and an underdeveloped sense of
responsibility” which “often result in impetuous and ill-considered actions and decisions.” (2) “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” (3) “[T]he character of a juvenile is not as well formed as that of an adult.” Roper v. Simmons, 543 U.S. 551, 569-70 (2005) (internal citations omitted). While in Roper the Supreme Court was considering defendants under the age of 18, all of the supporting literature applies equally to someone with Mr. McLean’s makeup, as brain development continues well into early adulthood: “Drawing the line at 18 years of age is subject . . . to the objections . . . against categorical rules.” Roper at 574. “The qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Id. While 18 may be the “point where society draws the line for many purposes between childhood and adulthood,” scientific developments conclude that full adulthood is not biologically achieved until much later in life than age 18. Id. The American Psychological Association explains that differences between adolescents and adults with respect to “risk-taking, planning, inhibiting impulses, and generating alternatives” is connected to “adolescent behavioral immaturity: the human brain does not settle into its mature, adult form until after the adolescent years have passed and a person has entered young adulthood.” Brief for the American Psychological Association and the Missouri Psychological Association as Amici Curiae Supporting Respondent at 9, Roper v. Simmons, 543 U.S. 551 (2005), -6-
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2004 WL 1636447 at *9 (hereinafter “Roper APA Brief”). United States v. C.R., 792 F. Supp.2d 343, 497 (E.D.N.Y. 2011). “[R]esponse inhibition, emotional regulation, planning and organization” all are not yet fully developed in 18 year olds. Brief for the American Medical Association, et al., as Amici Curiae Supporting Respondent at 16, Roper v. Simmons, 543 U.S. 551 (2005), at 16 (hereinafter “Roper AMA Brief”). “One of the last areas of the brain to reach full maturity . . . is the part associated with regulating behavior, stifling impulses, assessing risks, and moral reasoning.” Roper AMA Brief at 20. Indeed, “[m]uch of the developmental research suggests that the qualities highlighted by the Court [in Roper], described together as psycho-social immaturity, continue to apply to individuals into their twenties, even mid-twenties or beyond.” Emily Buss, What the Law Should (and Should Not) Learn from Child Development Research, 38 Hofstra L. Rev. 13, 39 (2009). Thus, given Mr. McLean’s intellectual deficits and age, a sentence of probation plus perhaps community service would best punish him and promote respect for the law. B. Mr. McLean does not have a high risk of recidivism
What is remarkable in a way is that despite Mr. McLean’s intellectual impairments, depression, and disadvantaged family structure, he did not have a criminal record prior to this offense. It is not uncommon for defendants in this District to have adult drug convictions stretching back to when they were 16 and 17 years old. Mr. McLean has never sold drugs, he has never robbed anyone, and he has not run with a gang. See King McLean’s letter, Exhibit B. He is quiet. He appears to have committed the crime out of boredom and, of course, great immaturity. There is every reason to believe that because of the instant prosecution and prison exposure, he has been sufficiently frightened so that he will never again be tempted to engage in any similar pranks. Of course the government has stressed Mr. McLean’s difficulties while on pretrial release as indicative of his high risk of recidivism, but it is important to note that Mr. McLean has not committed (but for possession of marijuana) criminal offenses while awaiting sentence. For sure, he has been unable to quit using marijuana but that reality only further indicates how important drug treatment is, -7-
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and will be, for him. As for his refusal to attend adult education, he appears to be afraid of humiliation given his severe cognitive deficits. In short, Mr. McLean must be viewed as a very immature young man – a boy really – who needs the Court’s help. With patience and perseverance, there is a real chance that Probation can help Mr. McLean improve his life. Again, jail in unlikely to do that. C. A sentence of probation would most effectively foster Mr. McLean’s rehabilitation
As stressed throughout this memo, jail will impede Mr. McLean’s rehabilitation not foster it. This Court should sentence Mr. McLean to probation with Dr. Scott’s recommendations as special conditions. D. A sentence of probation would avoid unwarranted disparities
In researching prior cases in this District, defense counsel only was able to find the following few somewhat similar examples. In United States v. Juan Rivera, Criminal No. 3:10cr108(EBB), Judge Burns sentenced a 43-year old first offender who had posted two signs within the financial building at 159 Church Street stating that he was going to blow it up, and causing the complete evacuation of the building and a full response from the city, to two years of probation and 100 hours of community service. In United States v. Farymiarz, Criminal No. 3:01cr253(AVC), this Court sentenced the defendant, who was convicted after trial of making a false statement to federal officers in connection with a bomb hoax, to one year of probation. Lastly, in United States v. Amir Omerovic, Criminal No. 3:02cr56(AHN), Judge Nevas sentenced a defendant who pled guilty to mailing letters to federal offices and claiming that the letters contained biological agents to 10 months’ incarceration. Furthermore, defense counsel has heard from other defense attorneys that juveniles who make bomb threats in school almost always obtain accelerated rehabilitation in state courts throughout Connecticut. Thus, although the Guidelines call for a 12-month sentence, when compared to other similar cases in this District, as well as in state court, a probationary sentence would avoid unwarranted sentencing disparities. V. Conclusion For the foregoing reasons, Mr. McLean respectfully urges the Court to sentence him to probation and community service. -8-
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Respectfully submitted, THE DEFENDANT, TRAVAIL MCLEAN FEDERAL DEFENDER OFFICE
Dated: September 14, 2012
/s/ Ronald B. Resetarits Ronald B. Resetarits Asst. Federal Defender 265 Church Street, Suite 702 New Haven, CT 06510 Bar No. ct26519 (203) 498-4200 Email: [email protected] CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 14, 2012, a copy of the foregoing Memorandum in Aid of Sentencing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
/s/ Ronald B. Resetarits Ronald B. Resetarits
-9-
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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA vs. TRAVAIL MCLEAN : : : CRIMINAL NO. 3:12CR68 (AVC) September 14, 2012
DEFENDANT’S MEMORANDUM IN AID OF SENTENCING Defendant, Travail McLean, respectfully submits this memorandum as an aid to the Court for sentencing and in support of a sentence of probation. I. Introduction As the PSR states in paragraph 56, “the Court may wish to consider whether a sentence within the guideline range is more than necessary to meet the purposes of sentencing detailed at 18 U.S.C. § 3553(a).” While defense counsel understands the government’s position that Mr. McLean needs a “wake up call,” this memo intends to show that Mr. McLean’s case is not an easy one as he lacks the ability and support to become a productive citizen as quick as all parties would like; that he has several serious cognitive impairments as well as environmental impediments which explain why his progress has been slow; that he has indeed shown some progress by attending the MAAS drug treatment program and remaining compliant while on electronic monitoring; and that the federal felony conviction coupled with probation can and will specifically deter him, adequately reflect the seriousness of the offense, justly punish him, and best foster his rehabilitation. Although Probation Officer Patrick Norton filed a Petition for Action on Condition of Pretrial Release seeking a summons ordering Mr. McLean to appear before Magistrate Smith and detailing that Mr. McLean failed to refrain from smoking marijuana; failed to attend adult education or obtain employment; and missed some sessions at the MAAS drug treatment program, Magistrate Smith did not find that incarceration was warranted. After considering the Report of Psychological Evaluation attached to this memorandum as Exhibit A, and discussing Mr. McLean’s situation in court, Magistrate Smith ordered that Mr. McLean’s conditions of release be amended to include home confinement with electronic monitoring. Based on a call with Senior Probation Officer Steve Lambert, Mr. McLean’s
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new pretrial services officer, Mr. McLean has been overall compliant with the home confinement. He has also been attending his drug treatment counseling sessions at MAAS. In short, before Mr. McLean has obtained even one job, he has now put himself in the difficult position of having a federal felony conviction for life. It is tragic because, in a sense, he has now knocked himself out of the mainstream before even trying to enter it. Put another way, the felony conviction alone will be a major punishment throughout his life. And indeed this prosecution itself has been a wake up call to him, despite not being able to completely abide by the conditions of pretrial supervision. Given some time and continued work, however, there is hope that Travail can stop smoking marijuana, treat his depression in a healthy way through psychotherapy, and gain vocational training. As Senior Probation Officer Lambert stated to defense counsel, Job Corps might provide both the right amount of structure and a learning environment of his peers. Mr. McLean respectfully requests that the Court give him a chance to succeed on probation before turning to incarceration. II. Mr. McLean’s history and characteristics A. Dr. Scott’s evaluation
Mr. McLean was evaluated by psychologist and Yale Assistant Professor Melanie C. Scott, Psy.D. She met with Mr. McLean for a total of six hours in order to determine his personality characteristics and cognitive functioning. Mr. McLean is the only child of the non-marital union of King McLean and Ernestine Johnston. Id. at 2; PSR ¶ 27. It is unclear whether Mr. McLean’s mother and father ever lived together but by the age of about three or four, after his father discovered bruises and scars on Travail’s body, King McLean removed Travail from his mother’s apartment, and Travail has lived with his father ever since. Exhibit A at 2. Mr. McLean and his father initially lived with Mr. McLean’s grandmother (his father’s mother) in her apartment in New Haven. Id. Travail and his grandmother were very close and when she died of a heart attack when he was 12 years old, he was devastated. Id. In many respects, he has never adequately recovered from this loss. He and his father then moved into their own apartment, and Travail reported to Dr. Scott feeling lonely after his grandmother’s death. Id. Mr. McLean’s father has worked as a custodian in Southbury, Connecticut -2-
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for years, leaving at 3:00 a.m. and returning at 6:00 p.m. See Exhibit B, King McLean’s letter to the Court. When the two lived with Travail’s grandmother, he was supervised by her but after she died, and his father was at work, he spent a great deal of time unsupervised wandering around his neighborhood with friends or alone. Exhibit A at 2. Although his mother also lived in New Haven, she was nearly completely absent in his life. Id. at 3. Mr. McLean was placed in special education in kindergarten due to extremely poor verbal skills. Id. He continued as a special education student into the fourth grade where he was shuffled into “speech and language only services” which only provided support for his expressive and receptive language deficits for 30 minutes per week. Id. at 3-4. “While in speech and language services, records indicated that he rarely participated in class without prompting, rarely worked independently, rarely followed written directions, rarely completed assignments, and rarely made up work when he was absent.” Id. at 4. Strikingly and tragically, despite being repeatedly invited, his parents never attended any of his PPT meetings to discuss his intellectual impairments or to advocate for appropriate services. Id. Dr. Scott’s report lists, in chart form, the shocking number of absences from school from fifth through the ninth grade. Id. He attended ninth grade initially at Hillhouse High School and had 118 absences before transferring to New Horizons High. In the 10th grade, he had 104 absences before being placed back in the ninth grade where he then had 112 absences. Failing the ninth grade, he was then forced to repeat it. He then had 108 absences the next year before dropping out. Id. at 4-5. Dr. Scott administered a full battery of cognitive tests and found that Mr. McLean obtained scores below the Extremely Low range of intellectual functioning, particularly in the areas of verbal concept formation, verbal language, and reasoning. Id. at 5-6. Regarding her psychiatric assessment, she found him to be mildly depressed, experiencing passive suicidal ideation, and having a thought process lacking in detail and maturity. Id. at 6-7. He was experiencing sleeping problems, irritability, loneliness, feelings of emptiness, and trust issues. Id. at 6. Regarding substance abuse, Mr. McLean smoked marijuana daily for six years prior to his arrest, -3-
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with the longest period of abstinence only one week. Id. at 7. Dr. Scott concluded that he has smoked marijuana out of boredom and to self medicate symptoms of depression. Id. at 7-8. In conclusion, Dr. Scott offered the following opinions: (1) Mr. McLean experienced the loss of the most stable relationship in his life – the loss of his grandmother, and from that point forward he has had continuous periods of instability. (2) He was physically mistreated beginning at age three, and he believes that those closest to him have hurt him. He thus has trust issues and feels he has no one to confide in, not even his father. (3) He has been left with no supervision for years while his father worked long hours out of the city. He is a lonely person with distant family relationships and insecure friendships. Mr. McLean has been easily misguided by friends and has carried a conflicted/underdeveloped belief system about life and law enforcement based on limited talks with his father. (4) Mr. McLean has serious deficits in his verbal abilities as well as nonverbal reasoning and inductive reasoning. It is thus not surprising, Dr. Scott opines, that he began skipping school and struggled academically. His educational record highlights a complete lack of parental supervision, support, and advocacy; and (5) He has symptoms consistent with mild depression and passive and fleeting suicidal ideation. Id. at 9. Lastly, Dr. Scott offered the following recommendations: (1) Mr. McLean would benefit from educational and vocational support. (2) He would benefit from regular, individual psychotherapy to address his current symptoms of depression and to discuss healthy means of coping versus marijuana use. Psychotropic medication should also be considered; and (3) Mr. McLean would also benefit from a mentor – someone to help him identify his life goals and act as a role model. B. King McLean and Ernestine Johnson’s letters to the Court
King McLean describes his son (“Little T” as he is known in his neighborhood) as having a kind -4-
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heart, and explains how Little T helps out people in the neighborhood, whether it be walking someone’s dog, helping an elderly neighbor with her groceries, or even cutting the lawn for a guy who’s going blind. See Exhibit B. He describes their neighborhood as one that is increasingly dangerous where shootings sometimes occur and where drug dealing is commonplace; and yet, despite that environment, King writes that he can go to sleep at night without worrying that Travail is involved with drug dealing and violence. Id. He concludes his letter stating that he is blessed to have Travail, and that he knows in the bottom of his heart that Travail is sorry for what he has done and that it will not happen again. Travail’s mother describes him as very quiet, humble, and “with a good spirit.” She describes his simple interests: he enjoys playing video games, watching TV, and listening to music. She goes on to state, “I realize that this is a very serious matter but I do not believe he gave it much thought. We talk[ed] about this [and] I made it clear to Travail how [disappointed] I was. I know my son would not harm any one.” See Exhibit B. III. The nature and circumstances of the offense The most aggravating factor, and one stressed by the government, is the number of times Mr. McLean made the false bomb threats. And although the city had to respond each and every time, when one listens to the calls there are times when the police dispatcher questions Travail and essentially says, “it’s you again, would you stop calling.” This crime should be viewed as committed by an extremely limited, immature, isolated child. And although Mr. McLean was 18 years old when he committed the crime, his cognitive makeup is at a much younger level. This was a bored child making pranks. He never had a bomb or plan; he never intended to hurt anyone; and he never directly threatened a person to his or her face. All of the hoaxes were made by calling police dispatch. IV. The § 3553(a) factors are all served by a sentence of probation A. A sentence of probation would adequately reflect the seriousness of the offense; justly punish Mr. McLean; and promote respect for the law
For this, Mr. McLean’s first criminal conviction, the Court should start with a probationary sentence. Given Mr. McLean’s serious cognitive limitations in verbal and reasoning abilities, as well as his immaturity, there is a real concern that he would be extremely vulnerable to abuse in prison. And -5-
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at age 19, he would be one of the youngest inmates there; only about 0.7% of federal inmates are below the age of 21. See Bureau of Justice Statistics, FY 2007 Prisoners in Federal Prison at Year’s End. In short, a prison sentence, however short, could do more harm to Mr. McLean thus causing him to be less stable and more susceptible to foolish behavior. Probation with conditions requiring treatment, as well as perhaps community service, would best promote respect as the community places confidence in a justice system where individualized sentencing occurs. Moreover, the Court must seriously consider Mr. McLean’s age and intellectual impairments. Apart from his cognitive impairments, an 18-year old’s brain is not fully formed. It is now wellestablished that teenage and young adult brains are different from mature adult brains, and that their decision-making processes are less developed. Consequently, even when they are guilty of criminal offenses, young people are arguably less culpable than their older adult counterparts. The Supreme Court has identified three major areas in which juvenile defendants under 18 differ from adult defendants: (1) Juveniles demonstrate“[a] lack of maturity and an underdeveloped sense of
responsibility” which “often result in impetuous and ill-considered actions and decisions.” (2) “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” (3) “[T]he character of a juvenile is not as well formed as that of an adult.” Roper v. Simmons, 543 U.S. 551, 569-70 (2005) (internal citations omitted). While in Roper the Supreme Court was considering defendants under the age of 18, all of the supporting literature applies equally to someone with Mr. McLean’s makeup, as brain development continues well into early adulthood: “Drawing the line at 18 years of age is subject . . . to the objections . . . against categorical rules.” Roper at 574. “The qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Id. While 18 may be the “point where society draws the line for many purposes between childhood and adulthood,” scientific developments conclude that full adulthood is not biologically achieved until much later in life than age 18. Id. The American Psychological Association explains that differences between adolescents and adults with respect to “risk-taking, planning, inhibiting impulses, and generating alternatives” is connected to “adolescent behavioral immaturity: the human brain does not settle into its mature, adult form until after the adolescent years have passed and a person has entered young adulthood.” Brief for the American Psychological Association and the Missouri Psychological Association as Amici Curiae Supporting Respondent at 9, Roper v. Simmons, 543 U.S. 551 (2005), -6-
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2004 WL 1636447 at *9 (hereinafter “Roper APA Brief”). United States v. C.R., 792 F. Supp.2d 343, 497 (E.D.N.Y. 2011). “[R]esponse inhibition, emotional regulation, planning and organization” all are not yet fully developed in 18 year olds. Brief for the American Medical Association, et al., as Amici Curiae Supporting Respondent at 16, Roper v. Simmons, 543 U.S. 551 (2005), at 16 (hereinafter “Roper AMA Brief”). “One of the last areas of the brain to reach full maturity . . . is the part associated with regulating behavior, stifling impulses, assessing risks, and moral reasoning.” Roper AMA Brief at 20. Indeed, “[m]uch of the developmental research suggests that the qualities highlighted by the Court [in Roper], described together as psycho-social immaturity, continue to apply to individuals into their twenties, even mid-twenties or beyond.” Emily Buss, What the Law Should (and Should Not) Learn from Child Development Research, 38 Hofstra L. Rev. 13, 39 (2009). Thus, given Mr. McLean’s intellectual deficits and age, a sentence of probation plus perhaps community service would best punish him and promote respect for the law. B. Mr. McLean does not have a high risk of recidivism
What is remarkable in a way is that despite Mr. McLean’s intellectual impairments, depression, and disadvantaged family structure, he did not have a criminal record prior to this offense. It is not uncommon for defendants in this District to have adult drug convictions stretching back to when they were 16 and 17 years old. Mr. McLean has never sold drugs, he has never robbed anyone, and he has not run with a gang. See King McLean’s letter, Exhibit B. He is quiet. He appears to have committed the crime out of boredom and, of course, great immaturity. There is every reason to believe that because of the instant prosecution and prison exposure, he has been sufficiently frightened so that he will never again be tempted to engage in any similar pranks. Of course the government has stressed Mr. McLean’s difficulties while on pretrial release as indicative of his high risk of recidivism, but it is important to note that Mr. McLean has not committed (but for possession of marijuana) criminal offenses while awaiting sentence. For sure, he has been unable to quit using marijuana but that reality only further indicates how important drug treatment is, -7-
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and will be, for him. As for his refusal to attend adult education, he appears to be afraid of humiliation given his severe cognitive deficits. In short, Mr. McLean must be viewed as a very immature young man – a boy really – who needs the Court’s help. With patience and perseverance, there is a real chance that Probation can help Mr. McLean improve his life. Again, jail in unlikely to do that. C. A sentence of probation would most effectively foster Mr. McLean’s rehabilitation
As stressed throughout this memo, jail will impede Mr. McLean’s rehabilitation not foster it. This Court should sentence Mr. McLean to probation with Dr. Scott’s recommendations as special conditions. D. A sentence of probation would avoid unwarranted disparities
In researching prior cases in this District, defense counsel only was able to find the following few somewhat similar examples. In United States v. Juan Rivera, Criminal No. 3:10cr108(EBB), Judge Burns sentenced a 43-year old first offender who had posted two signs within the financial building at 159 Church Street stating that he was going to blow it up, and causing the complete evacuation of the building and a full response from the city, to two years of probation and 100 hours of community service. In United States v. Farymiarz, Criminal No. 3:01cr253(AVC), this Court sentenced the defendant, who was convicted after trial of making a false statement to federal officers in connection with a bomb hoax, to one year of probation. Lastly, in United States v. Amir Omerovic, Criminal No. 3:02cr56(AHN), Judge Nevas sentenced a defendant who pled guilty to mailing letters to federal offices and claiming that the letters contained biological agents to 10 months’ incarceration. Furthermore, defense counsel has heard from other defense attorneys that juveniles who make bomb threats in school almost always obtain accelerated rehabilitation in state courts throughout Connecticut. Thus, although the Guidelines call for a 12-month sentence, when compared to other similar cases in this District, as well as in state court, a probationary sentence would avoid unwarranted sentencing disparities. V. Conclusion For the foregoing reasons, Mr. McLean respectfully urges the Court to sentence him to probation and community service. -8-
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Respectfully submitted, THE DEFENDANT, TRAVAIL MCLEAN FEDERAL DEFENDER OFFICE
Dated: September 14, 2012
/s/ Ronald B. Resetarits Ronald B. Resetarits Asst. Federal Defender 265 Church Street, Suite 702 New Haven, CT 06510 Bar No. ct26519 (203) 498-4200 Email: [email protected] CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on September 14, 2012, a copy of the foregoing Memorandum in Aid of Sentencing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.
/s/ Ronald B. Resetarits Ronald B. Resetarits
-9-
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