By Hendley Badcock
When Patricia Truslow embezzled $468,000 from North Fork Lumber & Log Homes in Goshen over the course of two and a half years, she was sentenced to 28 years in prison. She served 12 of those years and was released in the summer of 2014. To date, she has not paid back a penny of what she stole.
When Michelle Lawhorn embezzled about $170,000 over five years from the same lumber company, she got 20 years. She served a little over a year and spent another year under house arrest. Lawhorn has paid owner Will Harris around $1,400, a small fraction of what she still owes.
Prosecutors, judges, defense attorneys and experts agree that, even with state and federal sentencing guidelines, the terms recommended and those imposed for embezzlers, including female embezzlers, can look arbitrary.
The goal of implementing sentencing guidelines in Virginia in 1991 was to decrease disparities in felony punishments. But, in looking at Truslow’s and Lawhorn’s cases, those discrepancies still exist.
“You cannot tell what a sentence means,” Nora Demleitner, Dean of Washington and Lee University’s School of Law, said about the North Fork embezzlers’ punishments.
How did 28 years turn into 12 and 20 years turn into one, Demleitner asked.
Lawyers say that, among other things, sentences are a function of:
State guidelines that give relatively heavier weight to an offender’s prior criminal record than the amount of money embezzled.
A scoring system that penalizes women based on their sex. Judges and prosecutors don’t have a solid explanation for that. But they suspect it’s because women are more likely statistically to repeat economic crimes.
The expectation that a shorter sentence will help ensure that the embezzler will pay restitution. They seldom do, court officials acknowledge.
The prosecutor’s ability to “bundle” the charges against a defendant. A prosecutor may combine a series of small thefts over a six-month period to make one more serious charge, for example.
The attitude of the victim toward his or her embezzler. Often, when a church or small business is involved, the victim knows the criminal well, and might feel a mix of betrayal and sympathy.
The American Bar Association is urging the federal courts to adopt a new set of sentencing guidelines for embezzlers. The organization argues that the guidelines should consider the offender’s motive, effort to mitigate harm and monetary gain compared to the victim’s loss. The Bar Association also suggests looking at victim impact, including noneconomic suffering like emotional trauma.
Demleitner has no doubt that those changes would make a substantial difference in the way Americans think about and handle economic crimes.
“We’ve gotten used to very high sentences for white-collar offenders, and in part people really wanted that,” Demleitner said. “But now people go to prison for 25 years for not even personally enriching themselves . . . . We’ve reached a point where there’s a lot of unhappiness by the people in the system who are really seeing what’s happening.”
The Virginia Criminal Sentencing Commission’s guidelines for embezzlement do not consider the criteria being pushed by the ABA. Rather, they focus on the amount stolen and, even more, on the offender’s criminal record.
The goal of the guidelines is to make sentencing consistent for people who commit similar crimes and who have similar backgrounds. There are guidelines for everything from traffic violations to drug offenses to murder and rape.
Does money matter?
Buena Vista Commonwealth’s Attorney Chris Russell says one of the unique things about the embezzlement guidelines, compared to the burglary or robbery guidelines, is that they consider how much money was stolen.
But other attorneys are quick to point out that the amount of money isn’t nearly as big a factor in embezzlement sentences as people might think.
For embezzled amounts over $10,000, penalty points are added in figuring the recommended sentence. For cases involving sums below that, the offender often spends very little if any time at all behind bars, Augusta County Commonwealth’s Attorney Lee Ervin says.
The higher the embezzled amount goes, the more penalty points the guidelines add.
But the piling on of points stops at $75,000, Russell said.
“There are no more categories higher than that.”
Russell said one of his recent cases involved a woman who stole $400,000.
“Her guidelines were about the same as someone with her record that only embezzled $75,000,” Russell said. “[Seventy-five thousand dollars] is a lot of money, but she was someone that stole multiple times that.”
What seems to be considered more heavily is the offender’s criminal record.
Judging by the past
A criminal record, especially a violent one, is a big factor in a recommended sentence.
“If a person has no criminal history, and only embezzles a few hundred or a thousand dollars, usually [she is] looking at straight probation,” Ervin said.
But an offender can expect to serve some time if she has a criminal history or embezzles tens of thousands of dollars or more, he said.
An embezzler’s criminal record is often used to predict recidivism – the likelihood that he or she will commit a crime again. According to the National Center for State Courts and the Virginia Criminal Sentencing Commission, people convicted of larceny are the most likely of all nonviolent offenders to backslide.
“It doesn’t surprise me that women would recidivate more, especially with property crimes,” Demleitner said. “Once you’re out, you have more financial problems than you do beforehand, to some extent.”
Demleitner said that in some circumstances having a record doesn’t necessarily mean that person is a greater risk to society. A record can reflect things beyond recidivism, including growing up in a high-risk environment.
“If you have a record or not depends on where you live; it depends on how you grow up,” she said. “Record can reflect real culpability, but it can also just reflect kind of bad luck in birth.”
The female penalty
The Virginia sentencing guidelines use a tool called the Nonviolent Risk Assessment that is supposed to help the judge determine whether an embezzler qualifies for a sentence that will keep her out of prison.
Like the rest of the guidelines, the assessment is scored by a point system. This time, age and gender, plus criminal history, come into play.
Women are penalized just for being female – 13 points compared to nine for men. That’s important, because once an offender racks up 32 total points or more, he or she is no longer recommended for a nonprison sentence.
Lawyers and legal experts aren’t sure what makes gender a factor. But they did say the guidelines are driven by data and statistics collected by the sentencing commission.
“I’m guessing that statistics have shown men are more likely to re-offend, relapse on drug cases when they’re ordered to be clean after a drug conviction,” Russell said. “Women are maybe more likely to re-offend on stealing cases.”
Russell said he’s seen a pattern in which women who get into trouble with the law often have trouble controlling their spending. Men tend to not have control over other things, like drugs, alcohol or violence.
In 2002, when Truslow was convicted, the guidelines penalized the offender only for being male. There was no check box for being female.
Weighing the range
Once the offense, criminal history and nonviolent risk are calculated, the guidelines offer a range of sentences for each offender.
Judges can still decide not to follow the guidelines if they file a statement of their reasons. But data from the Virginia Criminal Sentencing Commission show the larceny guidelines had the highest rate of compliance by judges, at 82 percent.
“On property crimes . . . the guidelines usually come up with a pretty reasonable recommendation,” Ervin said.
But even with the range of sentences and the discretion judges can employ, Demleitner sees problems with the system.
“Some judges may feel that they should always be on the low side; some may always be on the high side,” Demleitner said. “The broader your range, the more inequality you’re even hiding just by saying, ‘Well, they’re sentencing within the range.’”
Beyond the guidelines
Truslow and Lawhorn both stole from the same business. And, in both cases, the judges went outside the guidelines.
Truslow spent 12 years in prison, two years over her maximum recommended sentence. Lawhorn spent a little over a year, nearly a year and a half less than her minimum.
While the sentences themselves for the two women did not differ drastically from the recommendations, the time each served did.
Lawyers say those two cases show the most frequent reasons judges go outside the guidelines.
The judge’s reasons for lowering Lawhorn’s sentence are not in her case file, but the judge’s statement for increasing Truslow’s sentence cited her previous embezzlement and larceny conviction.
In 1991, the Waynesboro Circuit Court convicted Truslow of one count of larceny after bailment, which means that her stealing did not have to be proven as trespassing.
“I’ll take a very different look at a person who’s done it out of necessity than I will at a person who’s done it solely out of greed.”– Staunton Commonwealth’s Attorney Ray Robertson
Her six-month sentence was entirely suspended, and she went straight into three-years’ probation.
In 2002, the day before Harris went to the police about Truslow, a small Fishersville company that had filed bankruptcy pressed charges against her.
Five months before Rockbridge County Circuit Court convicted Truslow of embezzlement in the Harris case, the Augusta County Circuit Court convicted her of embezzlement, forgery, credit card fraud and obtaining money by false pretense in the Fishersville case.
According to the August County Circuit Court online database, Truslow’s five-year sentence was suspended.
By comparison, Lawhorn had no prior record.
Shortly after her conviction, Truslow filed an appeal of her sentence.
Truslow argued that her sentence surpassed those for violent criminals and drug offenders, even though she was well within the range for a nonprison sanction according to the guidelines.
Truslow’s criminal record and the judge’s referencing her as the “coolest manipulator of the truth” he had ever seen did not paint her as a compelling appellant.
Truslow’s request was denied and her sentence remained.
Although the Virginia guidelines fall short of considering the embezzler’s motive and the crime’s impact on the victim, those factors often make it into courtroom conversation.
“I’ll take a very different look at a person who’s done it out of necessity than I will at a person who’s done it solely out of greed,” Staunton Commonwealth’s Attorney Ray Robertson said.
Often, need or greed tells the judge a lot about culpability.
“You can have someone who takes $500 just because they’re greedy versus somebody who takes $5,000 because they have a sick child,” Demleitner said. “We don’t really care about the loss that they’ve made that much in assessing moral guilt.”
The judge and prosecution might also pay attention to the emotions of the offenders and the victims.
“I see a lot of remorse in embezzlement cases,” Robertson said. “I see a lot of people that are up against it financially and thought that somehow they’d be able to repay.”
Because it involves trust and betrayal, embezzlement can be a very personal crime for its victims.
“I’ve seen different emotions from different employers,” Ervin said. “They feel sorry for the victim because they got in such a financial bind. A lot of the victims though have expressed anger at the employees for betraying the trust that they put in them.”
Harris, the owner of North Fork Lumber, said he felt much more sympathy for Lawhorn.
In Lawhorn’s case, he said, he told the prosecutor that Lawhorn had a teenage daughter and being put in jail for a long time wasn’t going to help anyone.
But he felt much more angry toward Truslow, who used Harris’ money to lease cars and homes for herself and her family.
“She had an opportunity to speak [in court] and she just lied continually,” Harris said. “And the judge could see it.”
Although Truslow lost years in prison, Harris and his wife lost years recapturing what had been stolen from their business.
“My business could have easily fallen apart,” he said.
Krysta Huber and Betsy Cribb contributed to this story.