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Analysis: What to expect at Jerry Sandusky's sentencing

In an exclusive interview with Rock Center’s Kate Snow, Travis Weaver speaks out about the alleged abuse he says he suffered at the hands of former Penn State Assistant Coach Jerry Sandusky. Weaver alleges he was abused by Sandusky more than 100 times in the Sandusky home, Penn State locker room and on trips with the Sandusky family. 

ANALYSIS

Jerry Sandusky's criminal trial did not draw the attention of the nation because there was some uncertainty about the outcome.  And though there is little reason to doubt he will be ordered to spend the rest of his life in prison when he is sentenced on Tuesday, our continuing interest in this case has little to do with the issues the court has to decide. 

Wes OliverWes Oliver is a law professor and director of the Criminal Justice Program at the Duquesne University School of Law.

Based on the jury's finding of guilt on 45 of the 48 counts, the former Penn State defensive coordinator and founder of the Second Mile charity for underprivileged kids could be sentenced to a maximum of over 400 years. But the judge is not required to sentence him to anything near that. Six of the offenses carry mandatory minimums of 10 years. This does not, however, mean that Sandusky must receive a minimum of 60 years in jail.  The judge will have to determine whether Sandusky serves his sentence for these individual offenses concurrently -- meaning simultaneously -- or consecutively.

None of the other offenses has such a low-end boundary, so the 68-year-old Sandusky could theoretically be sentenced to as little as 10 years. 


Those unfamiliar with the criminal justice system often find it bizarre that a defendant could serve time for two or more crimes at once.  After all, a prisoner serving two 30-year sentences at the same time is being punished the same as a person serving the same sentence for a single crime.  Practical realities, however, require this common occurrence.  If defendants were not routinely able to serve sentences simultaneously, a very substantial number of prisoners would be serving life sentences for offenses far from the worst in our criminal codes.

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Sentencing guidelines in many states like Pennsylvania instruct the judge on the appropriate sentence for each individual count. For instance, the judge is required to give Sandusky an indeterminant sentence of 10 to 20 years on the involuntary deviate sexual intercourse counts.  But judges in Pennsylvania, as is common throughout the country, have almost absolute discretion to determine whether the sentences for those counts will be served consecutively. So the judge's determination of which sentences should be served consecutively will thus be the single greatest factor determining the actual number of years Sandusky receives.

A young man known as "Victim 1" and who testified against former Penn State coach Jerry Sandusky is suing the university claiming it cared more for its reputation than it did about child safety. NBC's Lester Holt reports.

That means that Judge John Cleland has the discretion to give Sandusky a sentence that would permit him to be released after 10 years, just as he has the discretion to give him a sentence that could require him (in theory) to spend over 400 years in prison.  Given the number and seriousness of the counts, the lower end of this range seems improbable -- for any judge.

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For some judges, the upper end of this range would be an attractive option.  But anything greater than 25 years would mean a life sentence as a practical matter. In other words, Sandusky's life would not be changed, practically speaking, by adding another 375 years to a 25-year sentence.  A judge could see a multi-century sentence as a way to send a strong message to would-be child molesters without changing either a defendant's punishment of the state's cost of incarceration.  More cynically, a judge presiding over a case with this type of profile could see a multi-century sentence as a way to grab headlines and increase his reputation as someone who dealt severely with America's best-known serial pedophile.

But Cleland is not a grandstander.  We saw that time and again throughout the course of the criminal proceedings.  He thoughtfully considered defense motions.  Despite community pressure, he rejected a prosecution request that Sandusky not be permitted to sit on his back porch while out on bond.  His tone and demeanor were measured throughout one of the most closely watched criminal cases in the history of the country.  His sentence may approach the century mark, but a maximum sentence seems unlikely. 

The young man known as "Victim 2" in the Jerry Sandusky sex abuse case spoke out for the first time through his attorneys about how the former Penn State coach abused him and stalked him with phone messages. NBC's Ron Allen reports.

Nothing about Cleland -- or the seriousness of the facts of this case -- suggests, however, that Sandusky will receive a sentence of less than 25 years.  And that means a life sentence.  So the only real question is how he will serve out that sentence.  The Department of Corrections makes this determination and thus has a much larger role than Cleland in determining what the rest of Jerry Sandusky's life will be like.

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A battery of tests will be conducted to determine Sandusky's mental state, physical condition, his risk to others and the risk that others pose to him.  He will then be classified for a level of security – minimum, medium, close or maximum.  No one factor is determinative, though the serious nature of the offenses will certainly be a factor.  The availability of housing meeting his security level will determine his specific placement and in making that determination, there is no official policy to prefer a facility close to the inmate's family.  He could be placed anywhere in Pennsylvania.

The Department of Corrections will further have to determine whether measures are needed to protect Sandusky from other prisoners.  If inmates express concern for their safety, the department takes that into consideration. But  Sandusky has expressed a desire to be in the general population, at least at his present facility.  If there is a safety concern, he could be given an individual cell, but otherwise remain in the general population. Or he could be placed in what is known as a special needs facility.  In such facilities, there is greater supervision of the inmates due to their risk of victimization because of factors like age, or mental impairment.  He could also be placed in administrative segregation for his protection, which would amount to solitary confinement for 23 hours a day. The department does not, however, have a presumption that child sex offenders will be at risk for victimization merely because of their crimes.

Former Penn State University assistant coach, Jerry Sandusky speaks to NBC's Bob Costas in a Rock Center exclusive interview.  Sandusky was charged earlier this month with 40 criminal counts accusing him of sexual abuse of minors.

The Department of Corrections, over the next month, not at Tuesday's sentencing hearing, will determine what the rest of Jerry Sandusky's life is like.  Just as the result of his trial was fairly certain, so is the practical result of his sentencing.  Practically, the few issues that remain relate only to the level of his custody and will not be affected by his sentence.

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It is not surprising, though, that there is still considerable interest in Tuesday's hearing.  Despite its foregone conclusion, Sandusky's trial drew an international audience.  Our interest in the legal proceedings against Sandusky was never really about the law at all.  The Bellefonte, Pa., courtroom provided merely a backdrop for our view of this human tragedy.  Tuesday's sentencing hearing provides the last glimpse that focuses on Sandusky's role in the tragedy.  Soon enough we will turn our attention, with the trial of Penn State officials, to the role of university officials and, as a context for understanding their actions, the part played legendary Penn State football Coach Joe Paterno in this tragedy.  

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