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Posted: Tuesday July 29, 2008 2:51PM; Updated: Tuesday July 29, 2008 2:53PM
Michael McCann Michael McCann >
SPORTS LAW

Fallout from Donaghy's sentencing

Story Highlights
  • The severity of Tim Donaghy's prison sentence was not surprising
  • Donaghy's resitution to the NBA represents a symbolic win for the league
  • U.S. government could get involved, but probably not this Congress
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Tim Donaghy (center) will be required to serve at least 85 percent of his 15-month prison sentence.
Tim Donaghy (center) will be required to serve at least 85 percent of his 15-month prison sentence.
AP

SI.com legal analyst Michael McCann answers the key questions following Tuesday's sentencing of disgraced former NBA referee Tim Donaghy to 15 months in prison.

1) Are you surprised by the severity of the prison sentence?

No. Though Donaghy, a first-time criminal, cooperated with the government and his attorneys presented a compelling case that his gambling addiction severely impaired his judgment, he still committed serious federal crimes that normally warrant lengthy incarceration. In addition, the betting scandal's two other defendants -- bookie James Battista and middleman Thomas Martino -- each received comparable sentences, with Battista getting 15 months and Martino having to serve a year.

In deciding her sentence for Donaghy, U.S. District Judge Carol Amon assessed the extent to which Donaghy actively "chose" to commit crimes.

Donaghy's attorneys maintained that their client's gambling addiction turned an otherwise rational decision-maker into one directed by a harmful addiction. Donaghy's treatment counselor, Stephen Block, went as far as to say that Donaghy's "illness was the genesis of the illegal conduct in this case ... he could not stop himself from gambling." This form of argument is used to establish "diminished capacity," whereby a defendant acknowledges that he committed a crime but contends that his judgment was so impaired that he either could not have possessed the requisite intent to commit the crime or at least deserves a much lighter sentence. Donaghy thus had the logical challenge of appearing contrite for committing crimes that he insisted did not result from his own choosing.

In articulating her sentence, Amon praised Donaghy for cooperating with the government but also emphasized that he bears considerable responsibility for his many wrong decisions, which took place over a period of years. Put another way, even if Donaghy's gambling addiction made it harder for him to make correct choices, Amon still found that he possessed the requisite volition to make those choices.

Amon was also influenced by the sentencing recommendation for Donaghy issued by the U.S. Sentencing Commission, which proposes sentences based on the nature of a defendant's crimes and his or her criminal history. The commission prescribed that Donaghy receive up to the 33 months behind bars. Had Amon completely disregarded the recommendation, such as by sentencing Donaghy to probation (as requested by Donaghy's attorneys), she would have been subject to tremendous criticism.

2) How much time will Donaghy actually serve and where will it occur?

Donaghy will be required to serve at least 85 percent of his 15-month sentence, meaning a minimum of about 13 months. His opportunity for an early release will primarily depend on his behavior while behind bars, with the possibility of overcrowding at his correctional facility playing a secondary role.

The U.S. Bureau of Prisons will determine which correctional facility incarcerates Donaghy. The Bureau will take into consideration a number of factors, several of which will work in Donaghy's advantage. Foremost, he is a first-time criminal as opposed to a repeat offender. Three other favorable factors are his cooperation with government investigators, his willingness to plead guilty and accept responsibility rather than to waste tax dollars in a drawn-out trial, and his celebrity status, which may make him a target for victimization at a more hardened prison. The Bureau will also consider any recommendations offered by Judge Amon, Donaghy's request that he be placed in a facility near his family in Florida, space and crowding issues at facilities that would otherwise be suitable to incarcerate Donaghy, and the overall seriousness of Donaghy's crimes. The net effect of these factors suggests that Donaghy will be placed in a minimum-security facility.

After Donaghy is released from prison, he will be placed on supervised release for three years, during which his life will be significantly restricted and his failure to abide by the restrictions could lead to reincarceration. For instance, he will be required to report to a probation officer from the U.S. Probation Office. He will also have to avoid associating with any known criminals, adhere to travel restrictions and successfully complete mental health treatment for his gambling addiction.

3) How will Donaghy's restitution to the NBA work?

Restitution refers to a court-ordered reimbursement from the guilty party to the victim of a crime for expenses incurred by the victim that were directly related to the crime. It typically does not begin until the guilty party has been released from incarceration, though a judge can order that a portion of any wages earned by the guilty party while incarcerated be collected and disbursed to the victim. Judge Amon has ordered that Donaghy, Battista and Martino jointly pay the NBA $217,266, a much lower figure than the $1.4 million requested by the NBA of Donaghy alone.

The NBA can obviously afford to pay what Donaghy owes in restitution, but the league obtains symbolic value through the very fact that restitution has been ordered. The league can insist that it is a victim of Donaghy's crimes rather than an unwitting facilitator in those same crimes.

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