Last week, the Drudge Report picked up on a story in the Lincoln (Ne.) Journal-Star of a very interesting criminal case involving a college student sent to jail for 30 days for hosting a big party at his house. From the story:
Mike Herchenbach was sure he would get a fine. He’d pay a couple hundred dollars, like his roommates, and go on with his life, even though he wasn’t at the party that got out of hand at his rental house. After all, his name was on the lease.
But what he didn’t expect, and hardly believed, was what Lancaster County Court Judge Gale Pokorny had in mind as his punishment for maintaining a disorderly house last Oct. 2.
Herchenbach remembered his attorney from the University of Nebraska-Lincoln reaching for a work-release form, which would get him out of jail so he could work while serving his sentence.
He didn’t need it. It’s only a weekend, he remembered saying.
But Pokorny didn’t say three days in jail. He said 30.
The story indicated that the sentencing judge issued a written sentencing order explaining her decision, and so I contacted the journalist, Lori Pilger, asking if she might have a copy of the order that she could share. She very graciously agreed, and mailed me a copy of the 3-page order. I had it scanned in as a .pdf, and have posted it here: State v. Herchenbach Sentencing Order.
The sentencing order is probably of primary interest to other criminal law professors out there. Written sentencing orders applying the theories of punishment to a criminal case are rare, and first-year law students are likely to have unusually strong and deeply felt views about what kind of sentence is appropriate in a case like this. The opinion is not exactly the work of Learned Hand, but it’s a quick read and should lead to very engaging class discussion.
When I first read the news article, I was outraged. (The news accounts I saw omitted his criminal history.) After seeing his criminal history, I can’t say I feel sorry for him. The judge was a little preachy, but this student is a total degenerate who deserved a little away to reflect on his multiple acts of lawlessness.
I agree with Mike — this fella really needs to learn a lesson.
“Incorrigible” is the word that comes to mind.
What is the University doing about him? Here in Boston, B.C. would show him the door.
The journalist may have graciously agreed to help Prof. Kerr obtain a copy of the sentencing order, but she certainly did her readership a large disservice by omitting critical facts from the article (but hey, sensationalism sells). The effect of her selective inclusion of details is obvious: I suspect that Mike and I are not the only ones whose opinion changed dramatically. More importantly, however, I shudder to think that this type of shoddy reporting is commonplace in the news industry today.
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I’m not sure I would give 30 days, but my opinion of the punishment sure changed when I hit that 3rd page.
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I like everyone else here apparently when I first read the article thought it was an absurd result. Upon reading the Judge’s opinion, I think it was completely defendable. My only objection is the same objection I have to criminal sentencing in general, it is so random. Had this guy gone before another judge in the same court, I am sure he would have gotten one or two days or a big fine. Also, although I think the sentence was probably correct, I wouldn’t go so far as to call the kid a “degenerate” — that seems a little out of line. We all do stupid things when we were young, and some of us did stupider things.
California bars placing the costs of prosecution on the defendant; it sounds from the sentencing order that this rule is not universal.
I suspect the defendant in this case was still eligible for a work program, which is too bad. I think he has earned his jail time; if this is offense number one, it’s a fine. But this guy has clearly shown that the prior sentences mean nothing to him. Deterrence would obviously not occur without jail.
–JRM
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