by Mark Wilson
The United States Court of Appeals for the Seventh Circuit held for a second time that a lower court improperly failed to explain its rationale for sentencing a violent police officer significantly below the applicable guideline range.
Terry Joe Smith was a police officer with Indiana’s Putnam County Sheriff’s Department. In separate incidents, the six-foot, three-inch, 270-pound officer violently attacked two compliant arrestees.
Smith punched one arrestee in the face with a closed fist, causing immediate and extensive facial bleeding and swelling. The arrestee was taken to a hospital by ambulance. Smith bragged to other officers and mocked officers who objected to his unjustified attack. Two fellow officers testified against Smith, describing the sound of the blow as a tomato hitting a concrete wall. The arrestee was fully under the control of four other officers and did not present a threat when Smith sadistically attacked him.
Several months later, Smith and other officers arrested an intoxicated man who was accused of assaulting a woman during a domestic dispute. Smith led the handcuffed man to a patrol car. The man was not actively resisting in any way, but Smith raised him in the air, threw him face-first onto the ground, and drove his knee into the man’s back with such force that the man defecated on himself and sustained back and rib injuries. Smith later bragged that it was not the first time he had made someone defecate on himself. Fellow officers testified that the use of force was unjustified and excessive.
Smith was convicted of violating 18 U.S.C. § 242 by subjecting both men to the intentional use of unreasonable and excessive force and violating their civil rights. Smith’s guideline range was 33 to 41 months in prison, but the district court sentenced him to only 14 months in prison.
In the first appeal, the Seventh Circuit affirmed Smith’s conviction but remanded for resentencing, holding that the trial court failed to justify the below-guideline sentence. United States v. Smith, 811 F.3d 907 (7th Cir. 2016). On remand, the trial court again sentenced Smith to 14 months in prison and again failed to adequately explain or justify why it sentenced him far below the applicable guideline sentence.
In the second appeal, the Seventh Circuit again vacated the sentence and remanded for resentencing, announcing that “if there is a rationale to support a sentence that is less than half the low end of the guidelines, it is not apparent in the record here.”
The Court highlighted Smith’s “appalling history” of violence and other misconduct. That history included being convicted of misdemeanor battery for beating a three-year-old child that left the child bruised and bloody, and when his then-wife intervened to protect the child, Smith beat her too. The Court also cited his “unprovoked, premeditated beatings of two juveniles in custody….”
Smith was fired from Putnam County and a private employer when he was caught engaging in what the Court referred to as “ghost employment.” That is, he clocked into both jobs at the same time, so he would be paid for work he did not perform. Smith was finally terminated by the Putnam County Sheriff in connection with the assaults for which he was convicted.
Given this “appalling history,” the Seventh Court criticized the sentencing court’s imposition of a light sentence, in part, on Smith being “a person who does not shy away from work.” “There is some irony in the court crediting Smith as someone who ‘does not shy away from work,’” the Court opined. “Although Smith does ‘not shy away from work,’ he also does not shy away from inappropriate and unlawful conduct at work, losing five separate jobs because of his behavior,” noted the Court. See: United States v. Smith, 860 F.3d 508 (7th Cir. 2017).
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