Thursday, January 31, 2008

Should harm to reputation be taken into account during punishment?

In recent times under federal sentencing guidelines, the only way a defendant could receive a "downward departure" from mandatory sentence requirements has been to become an informant and enter into a "5-K" agreement with federal prosecutors.

Now, Doc Berman brings word of a "rare (first?) post-Booker high-profile sentencing setting, at least that I can recall, in which the government is urging a below-guideline sentence for reasons other than cooperation with authorities." Relates Berman:

As detailed in this New York Sun article and this WSJ Law Blog post, federal prosecutors "are seeking a two-year prison term for one of the nation's most successful class-action attorneys, William Lerach." The Sun article explains why this is notable:

Prosecutors said federal guidelines call for a sentence somewhat longer than 24 months, but that the term would be sufficient for Lerach in light of the harm done to his reputation.... Lerach "stands in disgrace before the profession of which he considered himself a national leader," prosecutors said. They did give Lerach credit for coming forward on his own initiative with an offer to plead guilty and for having no direct involvement in the alleged conspiracy "for a considerable time."

In this publicity-driven age, I'm particularly hopeful this reason for downward departures catches on, and it might mitigate quite a few federal prosecutions that I've seen as abusive of the state's power. As I replied in Doug's comments, "That could apply in a LOT of cases, it seems to me: Marion Jones and Dana Stubblefield come to mind." Indeed, there's little question that the ONLY reason the feds are pursuing celebrity steroid cases is to garner publicity, which they believe serves a preventive purpose.

There's just as much or more evidence of widespread steroid use among law enforcement as among professional athletes, but the feds targeted athletes, we're told, because they're role models for young people, blah, blah, etc.. (As though police aren't.) The feds are pursuing a narrow class of defendants, ignoring even evidence of lesser players' use and going only for the big stars.

Where the main governmental purpose for prosecuting is to seek publicity, shouldn't having that purpose met should somewhat satiate the state's lust for punishment? (A commenter [Lawgiver] on the WSJ Law Blog summed up my view on the subject: "These are exactly the types of cases that should not waste [prison] space and cost us all more tax dollars to build more prisons! Fine him a ton and keep him on house arrest. Make it cost him and not the rest of us.")

I'm gratified to see this new justification for a downward departure on two levels: First, it's good to see the erosion, however slight of the idea that the only chance for a reduced sentence under federal guidelines is to snitch. In addition, I think this particular reason for a downward departure comes up more frequently today than in the past, and this notion might limit particular instances of prosecutorial abuse.


Anonymous said...

Except in rare case, almost any downward departure for any reason could be justified. The guidelines are BS and have been from the start.

Unknown said...

That is pathetic! Police are role models? Not in my town! They are pathological liars who only tell the truth when it suits their political or personal agenda. I've heard so many accusations of police corruption that my ears burn - and this is from die hard "tough on crime" types. It's too bad they can't connect the dots between corruption and busybody laws like the bans on [arbitrarily banned]drugs, prostitution, and gambling.

Anonymous said...

sounds like just another way wealthy people avoid justice as applied to the lowly masses.

Gritsforbreakfast said...

"another way wealthy people avoid justice"

OTOH, when you're talking about Marion Jones and Dana Stubblefield, e.g., I think there's no way they'd have been prosecuted if they weren't famous. The whole goal of the prosecutors is to get in the newspaper.

Anonymous said...

Such are the risks/rewards of public life. She got famous and wealthy by engaging in illegal activity. so now because she is famous she shouldn't be held as accountable? round and round in circles we go...

Anonymous said...

and grits,
on the other hand, if Jones and Stubblefield hadn't lied to federal investigators they never would have faced jail time. They had their chance to let disgrace be enough and chose to lie.

Anonymous said...

guess I just made so much sense you were speechless grits!