Sentencing

“Indignation, it seems, is the most gratifying of all emotions. Nothing is quite so soothing as the feeling of superiority over sinners who have committed offenses that we are sure to be innocent of and that allow us to purse our lips in disdain…”
(Peter Gay, “The Fictions of Günter Grass, New York Times, 8/20/06, pg. WK-11.)

On July 6th, 2001, despite the fact that Nickel was a first-time offender, Judge Paul Czajka sentenced him to the absolute maximum on every count which he was convicted of:  25 years for one count of Sodomy in the First Degree, 15 years for one count of Aggravated Sexual Abuse in the First Degree, and 7 years each for two counts of Sexual Abuse in the First Degree. Because Judge Czajka specified that the sentences were to be served consecutively, Nickel was sentenced to a total of 54 years.

As required by law, prior to the sentencing, a Pre-Sentence Report was compiled by the Albany County Probation Department. Unfortunately, besides filling the report with factual and other errors -- all of which were to Nickel’s disadvantage -- the report’s author, Richard Hotaling, failed to actually follow the law in preparing it. He only gave a copy to the defense just minutes before sentencing; the law requires at least one full day so that the defense can absorb and adequately prepare a response to it. Secondly, in the “Victim Impact Statement” section, he listed one “victim” regarding who Nickel was not convicted of anything. And once again, contrary to law, he did not actually interview the alleged victims themselves. Moreover, the report’s overall tone was so one-sided that it was, in a word, venomous. (In a further example of bias, Hotaling refused to include in the report information sent to him by Nickel’s attorney.)

There were a large number of Nickel’s supporters at the sentencing hearing, many of whom had written letters to Judge Czajka on Nickel’s behalf. Both of these facts appeared to irritate Judge Czajka who, prior to the actual commencement of the hearing, proceeded to tell the assembled supporters that he knew Jeffrey Nickel better than they did.

Early on in the sentencing hearing, a local television crew asked Judge Czajka for “permission” to film the proceedings. Although Czajka’s clerk had received this “request” the day before, this was the first that the defense had heard of it. In any event, though the defense objected to the taping, Czajka allowed it anyway. This was contrary to state law, which clearly states that all parties must agree to any video recordings being made. Certainly, Czajka did appear to subsequently ‘play’ to the camera, denouncing the non-profit organizations for which Nickel had volunteered for “allowing” him to get near children. Curiously, though the TV station had seemingly fought hard to be allowed to film the proceedings, it ended up not airing them at all.

At the hearing itself, Judge Czajka called Jeffrey Nickel a “predator,” telling him: “You’ve lived your entire life with one goal, to assault children and from all indications, this continues to be and will continue to be your goal.” But the facts of this case would appear to refute these assertions. If this were his only goal, why did the third alleged victim testify that nothing happened? Moreover, Nickel was a teaching assistant who had worked with literally hundreds of children. And yet, not even a single one of them alleged anything untoward. If this were Nickel’s only goal, why is it that there was only one count of “sodomy” -- the most serious level of sex crime -- even alleged? Besides those charges relating to purported victim “A”, whose testimony was patently false on each and every verifiable element, there was only one other count, concerning a second alleged victim, “B”. On that count, Nickel was convicted of placing his foot on the boy’s (clothed) genitals. That’s it. Are these the actions of a person with the single purpose in life to assault children?

Judge Czajka sentenced Nickel to the absolute maximum, despite the fact that:

1. Nickel was a first-time offender -- he had never previously even been arrested for anything.
2. No force, coercion, or threats of any kind were so much as alleged, even assuming that he had done the things he was convicted of. (Moreover, the prosecution did not offer any victim impact statements at the hearing itself.)

In order to evaluate the sentences imposed on Nickel relative to those received by others convicted of similar crimes, an exhaustive sentencing survey was conducted for the years 1994 – 2004. All sentences that appeared in the appellate division reports, for sexual crimes committed against minors were included.

For each and every count that Nickel was convicted of, the sentences he got were significantly longer than average. The mean sentence for the top count was 9.4 years; Nickel’s was 166% longer. For the second most serious count it was 5.6 years; Nickel got 168% more time. Lastly, the average for Sexual Abuse First Degree was 3.6 years; Nickel’s was 94% greater.

This analysis also looked at aggregate sentences which were equal to or greater than those received by Nickel. There were only three that fit these criteria. In the first of these, the defendant had been convicted of 28 felonies, which also involved physical abuse and threats. He also had previous felony convictions. In the second case, also involving a repeat offender, the defendant was convicted of seven felonies. The third case involved six felony counts, one of which was attempted murder. The victim there was a 12-year-old girl. The defendant had stopped his car in front of her bicycle, chased her through the woods, and forcibly raped and sodomized her after binding her hands with duct tape. This was hardly his first offense either.

Given the above, it would appear that the total sentence that Judge Czajka gave to Jeffrey Nickel was the most severe sentence ever handed down in New York State, to a first-time offender, for sexual crimes against minors.