At first blush, the 12-year sentence received by Michael Fortier on Friday for not telling authorities about plans for the Oklahoma City bombing looks the same as the 12-year sentence he received last year.
But legally, the two sentences handed down by U.S. District Judge G. Thomas Van Bebber are very different, arrived at by applying different federal sentencing guidelines and standards that allowed Van Bebber to impose punishment far beyond the sentence Fortier asked for.
"The overwhelming devastation and impact of the Oklahoma City bombing is not reflected in the sentencing commission's guidelines," Van Bebber said while announcing Fortier's sentence.
"Overall, I think it was a courageous decision," said Paul G. Cassell, a professor at the University of Utah College of Law who
filed a sentencing brief on behalf of a bombing survivor and the mother of a bombing victim.
Several bombing survivors said they believe Fortier's new sentence is stronger than the original one and is more likely to hold up on appeal. Defense attorney Michael McGuire is appealing the ruling to the 10th U.S. Circuit Court of Appeals again.
"The judge stuck by his original decision," Cassell said. "I think justice was done."
"I think he just needed another way to get there, and I think Paul Cassell showed him how to do that," said Marsha Kight, whose
daughter, Frankie Merrell, died in the April 19, 1995, blast that killed 168 people, injured hundreds more and caused more than $80
million in property damage.
McGuire said he was disappointed by the sentence.
"I think a lesser sentence is appropriate. I think Mr. Fortier should be released," McGuire said.
McGuire urged Van Bebber to sentence Fortier to the 50 months he has already served in prison after pleading guilty in August 1995 to failing to notify authorities of the plot to bomb the Alfred P. Murrah Federal Building and other charges.
Fortier's original 12-year sentence was set aside by the 10th U.S. Circuit Court of Appeals, which said Van Bebber used the wrong
guidelines when he sentenced Fortier in May 1998.
The court said Van Bebber should have used guidelines for involuntary manslaughter instead of harsher first-degree murder
standards. The manslaughter guidelines call for 51 months in prison, about the time Fortier has already served.
But Cassell said the judge could still impose Fortier's original 12-year sentence because of the extraordinary nature of the bombing, which Cassell called "the largest case of mass murder in our nation's history."
In Friday's sentencing, Van Bebber went into great detail describing the effects of the bombing on the victims, the survivors and the community. That detail added to the weight of the offense and the length of the sentence.
"The defendant has committed an offense that is off the charts," Cassell said. "Just punishment demands that the deaths of 168 people be reflected somewhere in the sentence."
Cassell argued, and Van Bebber ruled, that Fortier "knowingly risked death of the victims" when Fortier remained silent after convicted bomber Timothy McVeigh revealed details of the bombing plot, including where, when and how the bombing would occur.
"He knew all the details of the bombing conspiracy," Cassell said. "The defendant had been told exactly what was going to
happen ahead of time."
Cassell also argued that Fortier is culpable for the deaths, injuries and property damage because of his inaction, a legal conclusion that allowed Van Bebber to go beyond the minimum sentencing standards for involuntary manslaughter.
Van Bebber ruled that Fortier's knowledge of the bombing plot and the bombing's impact "mandate an upward departure."
McGuire argued that Fortier, 30, merited a lesser sentence because of his cooperation with government prosecutors and his
testimony in the trials of McVeigh and co-conspirator Terry Nichols.
"This man was the difference in both of those cases," McGuire said. "This man has given a lot. He should be given credit."
But Van Bebber refused, ruling that applying the involuntary manslaughter guidelines recognized Fortier's lesser participation and negated the need for a downward departure.
Van Bebber did make one concession to Fortier by reducing his original $200,000 fine to $75,000.
The Associated Press.