K. R. Claviger is our legal correspondent and has always been generous about replying to comments and answering questions of readers. Here are some of his replies to commenters explaining the upcoming restitution hearings for Keith Raniere.
A Raniere supporter, Suneel Chakravorty, has written that he thinks it is unfair for people who were not proven to be victims in the trial of Raniere to be awarded restitution as victims. Claviger explains that, while this may be deplorable, it is the current law.
By K.R. Claviger
Suneel,
Just as your wishing that our criminal justice system operated differently in terms of how trials are conducted – and how appeals are limited in scope – doesn’t change anything, so too does your criticism about how restitution is awarded not change anything.
Worse yet, claiming that Keith Raniere is being treated unfairly in terms of being ordered to pay restitution – when, in fact, he’s being treated exactly the same way as any other convicted defendant – underscores your overall lack of understanding of our criminal justice system.
By way of example, if Keith got a speeding ticket for driving at 75 mph in an area that was clearly marked with signs stating that the limit was 45 mph, you’re arguing that Keith should not have been ticketed because the speed limit in the area should be 75 mph. Do you really think that sort of argument will result in the traffic court judge dismissing the speeding charge against Keith?
Keith Raniere has been – and is being – treated in accordance with the applicable rules and standards of our criminal justice system.
You may think that many of those rules and standards of that system should be changed – but that doesn’t mean that Keith Raniere is being treated unfairly within that system.
Because Keith has been – and is being – treated fairly within the rules and standards of our criminal system, I do not think that any of his appeals will result in him getting a new trial.
If you want to change the rules and standards of our criminal justice system, you need to direct your efforts to members of Congress. But even if all of your desired changes were enacted, that may not change Keith’s fate.
He was arrested, indicted, held, tried, convicted and sentenced under our existing system. And unless you can prove that he was treated substantially differently from all the other defendants that have gone through that system, your arguments about him being treated unfairly will continue to fall on deaf ears.
The Dalai Lama with Keith Raniere
Anthony replied to Claviger:
You keep missing the point Claviger. Just because all of the convictions, trials, etc. are the same, it doesn’t mean they’re right and, most importantly, it doesn’t mean they’re serving justice. We should stand together for justice for all, let aside Raniere. I hope you realize this and actually support a good cause.
K.R. Claviger
No, Anthony, I think it is you and Suneel who “keep missing the point”.
If you and Suneel have any evidence that Keith was treated differently at any stage of his case than the average criminal defendant is treated, please show it to all of us. Simply complaining that the system is unfair – which is all you’ve done so far – is not going to get Keith Raniere a new trial.
Do prosecutors often over-charge in order to force defendants into plea deals? Yes, they do!
Do prosecutors in jury trials often try to portray defendants as “general scumbags” rather than just focus on the elements of each charged crime? Yes, they do!
Do juries often get caught up in emotions rather than simply apply the law in some cases? Yes, they do!
Do judges sometimes hand out excessive sentences because they are so thoroughly disgusted with certain defendants? Yes, they do!
And even if you and Suneel can prove that all those things happened to Keith Raniere, my response is “So what…it happens all the time. And appellate courts and the U.S. Supreme Court have set guidelines and standards on all of those issues”.
So, unless you and Suneel can prove – and “prove” is not the same as “allege” – that the existing guidelines and standards regarding one or more of those issues were somehow violated in Keith’s case, there is zero chance that Keith is going to get a new trial.
Keith decided not to take a plea deal.
Keith decided to have a jury trial rather than a bench trial.
Keith decided not to put on any defense.
Next case…
A comment by Anna furthered the debate:
Claviger, your speeding ticket analogy is incorrect. The proper way to compare the two situations is as follows: K gets a speeding ticket because he was driving 75mph. However, there was never any speed limit sign posted anywhere on the road. The only reason he’s being given a ticket is because a bunch of so-called victims are rushing up claiming that there was a speed limit sign when they have nothing to prove it. They aren’t questioned at all, the judge just takes their word for it and gives the ticket anyway.
K.R. Claviger
You’re talking about restitution — which is a separate issue from his conviction, the issue I was addressing with the 75 mph/45 mph reference.
But even in terms of restitution, there are established rules and standards that will be applied in Keith’s case.
Each person who claims to be a victim will have to show how they were directly harmed by one or more of the crimes committed by the NXIVM defendants. And they’re going to need to show how they calculated the damages for which they are seeking restitution.
Keith will also have an opportunity to challenge each claim for restitution. And he also won’t be “under oath” in terms of whatever he says in his challenges.
This is not the first case in which Judge Garaufis has had to grapple with claims for restitution. He’ll weed out the “hopeful” from the “deserving”.
Suneel Chakravorty
Suneel Chakravorty made a comment in reply to Claviger:
Yes. This way of handling restitution, although antithetical to due process, has become commonplace, as have many of the previous issues I have raised. But I do not believe that just because they are accepted, we should accept them and not publicly criticize them.
Also, when I say I believe Keith Raniere was treated unfairly, I do not mean unfair in comparison to others who have had the misfortune of dealing with the Department of (in)Justice – his treatment is not unique and there are many dealing with far worse.
I mean unfair in comparison to the ideals of justice and due process.
Keith’s case presents an opportunity because it has many factors that make it fascinating to the layperson, and I intend to seize this opportunity to expose not only the issues in Keith’s case but also the systemic problems.
By K.R. Claviger
Suneel, you and I are in agreement that several aspects of the current U.S. criminal justice system need to be improved.
Where you and I differ is whether Keith’s case is the right vehicle for such improvements to occur – and whether Keith is entitled to a new trial. I encourage you to keep working to improve the system.
I also encourage you to accept the reality that Keith is never going to get out of prison.
Maryb commented:
Keith Raniere is guilty and horrible, but Suneel is right, he didn’t get a fair trial. You sure do things funny over there [in the USA]. Here the victims are the victims of the crimes the Defendant was CHARGED with.
K.R. Claviger replied:
We actually do have similar rules in the U.S. For example, per 18 U.S. Code § 3771(e)(2)(A), “[t]he term ‘crime victim’ means a person directly and proximately harmed as a result of the commission of a Federal offense…” In general, such harm can be financial, physical or psychological in nature.
In theory, there must a nexus (direct link) between the one who is claiming to be a “victim” and the crimes(s) that the defendant has been convicted of committing. In practice, however, prosecutors and judges sometimes bend the rule in terms of who is allowed to make a “Victim Impact Statement” at the sentencing hearing of a convicted defendant –and/or to submit a restitution claim.
Clare Bronfman with the Dalai Lama in Albany., May 2009.
In the case of Clare Bronfman, several people who were not directly connected to the two crimes to which she pleaded guilty were allowed to read “Victim Impact Statements” at her sentencing hearing. Insofar as I can recall, Clare’s attorneys did not raise any objections to any of those people being allowed to make those statements.
The same thing happened in the case of Keith Raniere. Once again, I do not recall Keith’s attorneys raising any objections to any of the people who were allowed to make “Victim Impact Statements” at his sentencing hearing.
In Clare’s case, Judge Garaufis ordered her to pay $96,605.25 of restitution to Jane Doe 12 (Sylvie). He also fined her $500,000, ordered her to pay a Special Assessment of $200, entered a money forfeiture judgment of $6,000,000, and sentenced her to 81 months in federal prison (Per the terms of her plea deal, Clare can only appeal the portion of her sentence that is above 27 months).
In Keith’s case, Judge Garaufis fined him $1,750,000, ordered him to pay a Special Assessment of $700 and a $15,000 assessment pursuant to the Justice for Victims Trafficking Act of 2015, and sentenced him to 120 years in federal prison (In addition to appealing his conviction of committing the seven crimes with which he was charged, Keith can – and likely will – appeal several aspects of his sentence). The judge also allowed those who claimed to be “victims” to submit their claims within 90 days of the date of Keith’s sentencing.
Judge Nicholas Garaufis
If Judge Garaufis utilizes a narrow definition of the term “victim”, only those people who were directly affected by the seven crimes of which Keith was convicted (and the sixteen predicate acts underlying the Racketeering conviction) will be awarded restitution. If, however, Judge Garaufis uses a broader definition of that term, then even those who were not directly affected by those crimes and predicate acts will be awarded restitution.
