Increasing a Sentence Sevenfold--'Vindictive'

In 2005, Richard Balsavage pleaded guilty to eight counts of sexually abusing children and admitted that he had pictures of his girlfriend's 2-year-old son posing naked. He served just over a year in prison and, shortly after his release, violated the terms of his probation.

When Richard Balsavage was put in front of Berks County Judge Steven Lieberman for a probation violation hearing, his probation officer, cellmate, sex-offender therapists and sex-offender treatment specialist offered "damning testimony," reported the Legal Intelligencer.

Judge Lieberman increased Balsavage's sentence twice.  The second time after an appeal the sentence was increased sevenfold.  The U.S. District Court said he clearly showed judicial vindictiveness.

"This case presents the rare situation in which it is not necessary to determine whether the presumption of vindictiveness applies because it is clear that the petitioner has met the 'exceedingly difficult' burden of proving actual vindictiveness," said U.S. District Judge Anita B. Brody of the Eastern District of Pennsylvania, granting Balsavage's habeas petition.

From the first hearing testimony, Lieberman concluded that Balsavage wouldn't be amenable to treatment.

 "'Only total confinement for a lengthy period of time will afford the community at large any hope of real protection from [Balsavage's] predatory behavior. And I believe that lengthy incarceration followed by lengthy supervision is also necessary to make sure that Mr. Balsavage continues to comply with treatment and to conform his behavior to societal norms,'" Lieberman said, according to Brody's opinion.

 Lieberman increased Balsavage's original sentence — nine to 23 months' imprisonment with seven years of probation — by a significant margin, making it three-and-a-half to seven years' imprisonment with 42 years of probation, the Legal Intelligencer.

The decision was successfully appealed and returned to Lieberman for resentencing. Before issuing a sentence--seven times longer than the one he had given at the first hearing--Lieberman reiterated his intent to protect the public by incarcerating Balsavage.

"The Gagnon judge actually stated, on the record at the resentencing hearing, that the increased sentence given to Balsavage was due to 'the fact that you appealed every decision and sentence this court ever imposed on you,'" Brody said, quoting Lieberman. Thus the basis for declaring the sentence vindictive.

To read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202593112226&et=editorial&bu=The%20Legal%20Intelligencer&cn=TLI_AM20130322&src=EMC-Email&pt=TLI%20AM%20Legal%20Alert&kw=%27Vindictiveness%27%20of%20Sentencing%20Judge%20Frees%20Sex%20Offender%20Premium%20Access%20Required%20&slreturn=20130225074933