It is difficult to comprehend how much our world has changed since October 21, 2019. Then, Elizabeth Henriquez walked into the John Joseph Moakley courthouse in Boston, surrounded by photographers and television cameramen, to enter her guilty plea for her role in the Varsity Blues college cheating scandal. Henriquez and her husband admitted to paying $500,000 to get their daughters into Georgetown University and Northwestern University through cheating on college entrance exams and bribing a college coach.
US District Judge Nathaniel Gorton recognizes COVID-19 in recent prison sentencing
Assistant US Attorney Eric Rosen, District of Massachusetts, has led the charge on most all of the Varsity Blues proceedings, pushing for harsh prison terms. In the government sentencing memorandum for Henriquez, filed on February 3, 2020, Rosen and his team asked US District Judge Nathanial Gorton for a “significant” prison term.
Fueled by arrogance and entitlement, the defendants’ actions demonstrate a stunning disregard for basic principles of fair play and common decency. Over and over, they sought to arrogate to themselves, using money and lies, that which others work hard to achieve. Such brazen criminality requires just and certain punishment: prison, for a meaningful term.
Since then, the world has changed significantly with the spread of COVID-19. Henriquez’s state of mind in February was that she would have to endure pushing her way through the phalanx of media to get into the courthouse to face Judge Gorton one last time. Rosen envisioned arguing his points in front of the judge, pressing for the maximum amount of prison time. However, that courtroom drama was not to be.
By late March, Henriquez’s attorney, Aaron Katz, Ropes & Gray, wrote a sentencing memorandum with an acknowledgment of wrongdoing, “Elizabeth's unlawful acts were motivated by a desperate, misguided desire to shield her daughters from failure.” He also had two important matters he wanted to bring to the attention of Judge Gorton.
First, Katz wanted to mention matters of misconduct related to the Varsity Blues case against actor Lori Loughlin. There, defense attorneys said the that government had “browbeat Singer [Rick Singer, instigator of scheme and government star witness] and instructed him to lie in order to elicit misleading evidence that was inconsistent with the actual facts that Singer had explained to agents.” Judge Gorton is hearing that case and Loughlin’s attorneys have asked that her case be dismissed on grounds of suppression of evidence and prosecutorial misconduct. Gorton has yet to rule and evidence that Singer provided in Henriquez’s case was likely a consideration in her guilty plea.
Second, and most important, the COVID-19 outbreak threatened all of America and posed a unique contagion problem for those incarcerated. County and state facilities are preparing large scale releases of inmates while the Attorney General and Chairman of the House Judiciary Committee are calling on the Federal Bureau of Prisons to release elderly and health-compromised inmates. One of Judge Gorton’s peers, US District Judge Indira Talwandi, ordered the prison term of Agustin Francisco Huneeus, himself part of the Varsity Blues case, reduced because of health concerns.
COVID-19 is an issue, so much so, that Henriquez’s sentencing took place via live video stream to the courtroom. She in California and Gorton in Boston. Gorton said of the unprecedented situation, “First, I need to note for the record that we are proceeding today with the sentencing of Ms. Henriquez pursuant to General Order 20-12, which was entered yesterday, March 30, by Chief Judge Dennis Saylor of this court. That order concerns videoconferencing for felony sentencing, and in turn was issued pursuant to the National Emergencies Act and the so-called CARES Act.” At least she avoided the Boston media parade into the courthouse ... though likely they would have given her a bit more space.
Judge Gorton is known as a tough judge, one that has no problem sentencing someone to a term of incarceration. While he could have imposed a sentence of home detention, he sentenced Henriquez to 7 months in prison. However, he did so with an acknowledgment that her surrender date be June 30 and, depending on the situation then, he would entertain a motion to reconsider that sentence.
... although we are, indeed, in the midst of a public health crisis, I will not forfeit the obligation of a federal judge to impose a sentence that is warranted by the defendant's conduct. In this case, that is a period of incarceration. Under the circumstances, I believe it is appropriate to defer Ms. Henriquez's self-report date for a reasonable length of time. I have every hope that the Coronavirus crisis will abate in a period of months, and that Ms. Henriquez will be able to serve her sentence safely and to rebuild her life. If the public health crisis has not lessened by the current report date, which is, again, June 30, 2020, I will entertain a motion to reconsider at that time.
It is likely the the situation in federal prisons will deteriorate further in the upcoming months. The number of COVID-19 cases reported by the BOP doubled in one day (from March 31 - April 1) and the agency announced its third inmate death from the virus. Prisons are overcrowded and after this pandemic it is difficult to see how the BOP maintains the current level of inmates without compromising the health of both inmates and staff. Further, it is unclear whether COVID-19 will give a repeat performance in the fall.
COVID-19 is a turning point for our nation and it most certainly will change how we think about imposing prison terms. One month ago (March 2, 2020) there no inmates with COVID-19, families visited with their incarcerated loved ones around the country. Attorneys visited the incarcerated clients in prison. The BOP did not even mention COVID-19 on its website, now there are daily updates.
If COVID-19 is on Judge Gorton’s mind as it relates to sentencing someone to prison, it is on the mind of every federal judge.
