Following Thursday’s sentencing of David Coleman Headley for masterminding the 2008 Mumbai terror attacks, it has become evident that he is likely to serve less than 35 years from the moment his sentence was pronounced in a Chicago courtroom.

The first factor mitigating the time Headley will serve is the requirement under U.S. federal law that convicted persons may serve only 85 per cent of the total sentence awarded to them. This was indeed confirmed in both the U.S. Department of Justice press release to media after Judge Harry Leinenweber passed the sentence, and also in statements made by Headley’s attorney John Theis and lead prosecution attorney Gary Shapiro.

In the press release the DOJ said, “Headley, 52, was ordered to serve 35 years, followed by five years of supervised release... There is no federal parole and defendants must serve at least 85 per cent of their sentence.”

However a second mitigating factor too exists, one that media reports thus far have failed to highlight prominently – that the time that Headley has spent in prison thus far, 40 months, will be deducted from the total sentence that he will serve.

In an exclusive comment to The Hindu Mr. Theis said, “Mr. Headley has served approximately 40 months, and he receives credit for that time.” He reiterated on email that Headley would be eligible for release after serving 85 per cent.

However although The Hindu pressed Mr. Theis further on the matter, at the time of going to press he had not yet provided an answer to further question on the “mathematics” of Headley’s sentence calculation: will the 40 months be deducted from the total sentence period of 35 months and then the 85 per cent factor be applied, or would it be the other way around? That is, would the 85 per cent factor be applied to 35 years and then the 40 months deducted?

Before looking at the implications of this it, a word on motivation for this line of reasoning is appropriate.

The overall difference between the final tallies of both methods may not be significant. But it could be argued that to the loved ones of victims of the Mumbai attacks, and indeed to those who may have been affected if the attack against the Danish publication Jyllands-Posten had been carried out, every marginal reduction in Headley’s sentence makes what has been described by some as a light sentence even harder to bear. Thus it is worth looking at even the minute differences in the sentencing numbers.

The first calculation is as follows. Thirty-five years is 420 months. If 40 months is first deducted from that and 85 per cent is applied to the reduced amount of 380 months, the total is 26 years and 11 months.

Under the second calculation 85 per cent of 420 months is 357 months, and 40 months less is 317 months, or 26 years and five months. This is 6 months less than the result of the first calculation.

Headley is 52 years and seven months old, or 631 months, at the time of sentencing. Under the first calculation at the time of his hypothetical release he would be 79 years and 5 months old, and under the second he would be exactly 79 years old.

Life expectancy in the U.S., based on 2010 data from the Centre for Disease Control and Prevention is 78 years and eight months.

This article has been corrected for typographical error.

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