What's a fair sentence for Jose Padilla?

The Al Qaeda recruit asks the court to weigh his torture allegations. The US calls conditions in the brig 'irrelevant.'

from the December 3, 2007 edition

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"I don't think the government ought to be able to treat people in this way and then, when it comes time for punishment, get all self-righteous and act as if all that happened here was an ordinary criminal trial with ordinary criminal consequences," Professor Bowman says. "It isn't ordinary. What happened to this guy was extraordinary."

He adds, "It would be unfortunate for the judge to pretend it didn't happen and that it doesn't matter."

Some analysts praise the government for seeking a maximum sentence. "There are plenty of cases where defendants deserve leniency, mercy, the benefit of the doubt. This is not that case," says Guy Lewis, a former US attorney in Miami who is now a corporate defense lawyer.

"This defendant has been convicted of some of the most serious crimes that are on the books and, for those crimes, he deserves a commensurate serious sentence," Mr. Lewis says. "Does that mean the judge will max him out and give him life?" he asks. "Probably not."

Other analysts say the government has produced meager evidence of criminal culpability by Padilla despite government accusations – still unproven – that Padilla once plotted to detonate a radiological dirty bomb in a major US city. That charge was never included in the Miami criminal case. Nor was there any evidence presented in the Miami trial that Padilla ever participated in a plot to kill or harm someone.

Instead, prosecutors relied on an expansive interpretation of conspiracy and material support laws to permit the jury to find guilt in an undefined, open-ended plot to help unidentified Islamic radicals overseas.

"The best you can say for the government is that they succeeded in convicting Padilla on some penny ante crimes," says Eric Freedman, a constitutional law professor at Hofstra Law School in Hempstead, N.Y.

Professor Freedman says it is "hypocritical" for the government to attempt to obtain the same substantial sentence of life in prison that prosecutors might have obtained had they proved Padilla plotted to detonate a bomb in the US or personally undertake other violent action.

He says the prosecutors' request for a sentence of life without parole is part of a continuing attempt by the government to try to justify its earlier harsh treatment of Padilla.

"Padilla stands before the court as a trained Al Qaeda killer," prosecutor Shipley writes in the government's sentencing brief. "Padilla's contribution to the charged conspiracies was unique, and uniquely fanatical and dangerous."

In Padilla's brief to the judge, defense lawyers appear to be discussing a different case. "The government has offered no evidence of any sinister motive on Mr. Padilla's part," writes Mr. Caruso. "There is no evidence that Mr. Padilla ever sought to harm an innocent person."

Regardless of the sentence handed down by Cooke, the controversy surrounding Padilla is unlikely to die down anytime soon. His lawyers are expected to appeal his conviction, and a civil lawsuit has been filed in federal court in South Carolina against former Defense Secretary Donald Rumsfeld and other US officials over Padilla's alleged torture while in military custody.

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