What will they do to Ken Lay? Give him life plus cancer?

That’s from Jeralyn Merritt, on July 13, 2005, the first known use of the phrase “life plus cancer”*. Her question was not as macabre as it sounds now, since we know that Lay met an untimely death, some guess by suicide, in between his own conviction and sentencing date. No, she was commenting on the 25 year sentence that had just been handed out to Bernie Ebbers, and asking how much Lay would get, since the amount of his fraud dwarfed Bernie’s.

Jeralyn is credited with coming up with the question, what are they gonna do… give him life plus cancer? Greenfield often uses the life plus cancer conceit in discussing proportionality of and disparity between sentences, especially white collar or other non violent crimes. How much is enough? If Mr. X gets 10 years, and Mr. Y’s crime is 4 times as bad mathematically, shouldn’t Mr. Y get 40?

Which begs the question what to do with Mr. Z? His financial crimes make X times Y look like petty theft. So life it is. And the next guy down the line, who outdoes Mr. Z – what to do but life plus cancer, right? What else is there?

So today I break open my Federal Sentencing Law & Practice, 2010 Edition, which comes with a handy laminated sheet of the sentencing table. You know, find your criminal history one through six, horizontal axis. Find your offense level one through forty three, vertical axis. It’s as easy as a multiplication table, your sentencing range is…… nearly predetermined, very little thinking required. Which is not to say that crim history and offense level are automatic by any means; just that once you’ve done that, tada! Presumptive guidelines range.

Flipping the handheld chart over gets you the application notes for the table. Note 2 jumped out at me:

In rare cases, a total offense level of less than 1 or more than 43 may result from application of the guidelines. A total offense level of less than 1 is to be treated as an offense level of 1. An offense level of more than 43 is to be treated as an offense level of 43. [emphasis added]

I had to laugh. For those of you without a table handy, an offense level of 43 is the highest possible, and it results in a presumptive guidelines range of Life, no matter the criminal history category:

 Level                 Life    Life    Life    Life    Life    Life

So there’s no level forty four, no forty three and a half. No matter how many adjustments you add to the base offense level, you’re going to cap out at a forty three. But there’s actually an application note that says, in effect, there’s no such thing as life plus cancer in the federal system.

[* according to the 45 to 60 seconds I spent Googling it. Feel free to correct me.]