The King of Pop Faces the Music
The Sentences Michael Jackson May Face If Convicted Under California And/Or Federal Criminal Statutes

By MARK H. ALLENBAUGH

Thursday, Dec. 04, 2003

As the world now knows, Michael Jackson was recently arrested. Reports indicate that Jackson will soon face California criminal charges. He claims innocence, but many observers believe he will have a difficult time at trial.

Specifically, Jackson is to be charged under Section 288 of the California Penal Code with multiple counts of "willfully and lewdly commit[ting a] lewd or lascivious act … upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." This offense is a felony.

Much attention has been devoted to the question of whether the charges against Jackson are true or false, and whether he is likely to be conviction. In this column, I will look at a separate issue: If Jackson indeed is convicted, what would his sentence be?

Strikingly, the prison term Jackson would actually serve could be quite short -- a few years or less. But if a federal prosecution were to be brought, it would be a very different story.

What Jackson's Sentence Might Be, If He Were Convicted

The relevant California statute says that a violation "shall be punished by imprisonment in the state prison for three, six, or eight years." Given that Jackson faces multiple counts, his sentence could be much longer than that -- but not necessarily.

For one thing, the judge would have the option to choose among the three, six, or eight year sentence for each offense. To do so, the judge would have to consider factors that might aggravate or mitigate Jackson's level of culpability. More importantly, the judge could choose whether the sentences would be served consecutively or concurrently.

The best case scenario for Jackson, of course, is that the judge imposes concurrent three-year sentences. In this scenario, Jackson could actually leave prison in fewer than three years -- thanks to California's parole system, and thanks to "the Governator."

So far, Governor Schwarzenegger has upheld most of the state parole board's recommendations. In marked contrast, former Governor Gray Davis rejected nearly all such bids.

Jackson might also benefit from "early release" programs. Given California's infamous budget deficit, the state's Department of Corrections recently announced plans to overhaul the state's parole system in order to reduce the number of inmates. Prisoners could become eligible for early release merely by signing up for education or prison jobs, even if none are available.

A Federal Sentence Might Well Have Been Far Longer

What if federal charges are also brought against Jackson? In that event, he might end up serving a far longer sentence.

Could the federal government prosecute Jackson? Certainly. Under the "separate sovereigns" doctrine, the Constitution's Double Jeopardy Clause does not bar duplicative state and federal prosecutions.

And in this case, it seems unlikely the prosecution would be duplicative. Reportedly, the Santa Barbara D.A. removed a large amount of videotapes, computers, and pictures from Neverland, suggesting the possibility that Jackson may have made sexual photos or films involving his alleged victim. (Jackson denies this.) If so, that could lead to charges under a federal statute that prohibits the sexual exploitation of children "for the purpose of producing any visual depiction."

Conviction under this statute could lead to a mandatory minimum of 15 years imprisonment without parole. (There is no parole in the federal system.) This minimum term was increased from a 10-year minimum by Congress in the PROTECT Act of 2003 in an effort to get even more tough on pedophiles. It may apply retroactively even if Jackson's alleged conduct preceded the passage of the Act.

Moreover, even if the new PROTECT Act minimum does not apply retroactively, the sentence Jackson would likely face under the federal system would be stiff -- far stiffer than under California law. Nor could Jackson hope for a lenient judge. Federal judges are bound by the U.S. Sentencing Guidelines, which restrict the range of the sentences they mete out, and lately, even judges' remaining discretion to sentence below the Guidelines has been under fire.

Given the notoriety of the case, it would not be surprising--indeed, it is likely--that federal prosecutors already are considering bringing a case against Jackson. If the federal government does prosecute Jackson, the prison time he will face if convicted is likely to be far more daunting than under the California system.

Moreover, that disparity will lead to a strategic discrepancy: Jackson may want to fight the California charges, or at least enter into a plea agreement to less serious charges--a strong possibility if the Santa Barbara D.A. perceives a significant possibility of an acquittal.

In contrast, and as a result of the PROTECT Act, federal prosecutors now are under marching orders to forgo such plea agreements. In fact, Attorney General Ashcroft has issued a memorandum requiring them to ensure the stiffest penalty possible, especially where a mandatory minimum sentence is available. And even if Jackson were able to enter into a plea agreement, it won't help him that much because of strict Federal Sentencing Guidelines.

Whether Jackson's dancing days are over remains to be seen, of course. But if he's going to the "big house," better for him to face the music of the Golden State than of the federal government.


Mark H. Allenbaugh, an attorney in private practice, is a nationally recognized expert on Federal sentencing, law, policy and practice. He currently serves as the Co-Chair of the Federal Sentencing Guidelines Committee for the National Association of Criminal Defense Lawyers, and is a member of the ABA's Sentencing and Corrections Committee. Prior to entering private practice, he served as a Staff Attorney for the United States Sentencing Commission. Mr. Allenbaugh has published numerous articles on sentencing and criminal justice, and is quoted frequently in the national press. He is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2d ed., Foundation Press, 2002). The views expressed herein are his own. He can be reached at AllenbaughLaw@aol.com.

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