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March 21, 2008

Some (final?) thoughts on politics, prosecution and punishment

Reviewing today's headlines in the New York Times in my in-box, these two indirectly related items seemed to justify some criminal justice reflection and commentary:

Especially in the wake of so many high-profile federal prosecutions for lying — ranging from Martha Stewart to Victor Rita to Scooter Libby to Barry Bonds — I found this passage from the op-ed intriguing:

We Americans are particularly preoccupied with honesty.  We're the only country that peddles the idea that "It's not the sex, it's the lying."  (In France, it's not the lying, it's the sex.)  America is also the only place I found that has a one-strike rule on fidelity: if someone cheats, the marriage is kaput. 

We might not strictly hold ourselves to this script, but we expect our politicians to follow it.  That's why people doubted that Bill and Hillary Clinton could have a "real" marriage if she stayed with him after the Lewinsky affair....

In my view, I actually think it is combination of the sex and the lying that really troubles most Americans.  Indeed, this combination proved deadly for Patrick Kennedy: he became the first person place on death row for a child rape offense in part because he refused to admit to his crime (Louisiana prosecutors likely would not have sought — and surely would not have secured — a death sentence had Kennedy admitted guilt).  Then again, Bill Clinton was involved in the sex and in the lying under oath all while being the President of the United States, and his only formal punishment ended up being the loss of his law license.  Hmmm.

March 21, 2008 at 09:33 AM | Permalink

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We might not strictly hold ourselves to this script, but we expect our politicians to follow it. That's why people doubted that Bill and Hillary Clinton could have a "real" marriage if she stayed with him after the Lewinsky affair....

This is false. The Lewinsky affair was hardly Bill Clinton's first strike. Also, contributing to the idea that their marriage isn't "real" is the fact that they both come across as calculating moral relativists.

In my view, I actually think it is combination of the sex and the lying that really troubles most Americans. Indeed, this combination proved deadly for Patrick Kennedy: he became the first person place on death row for a child rape offense in part because he refused to admit to his crime (Louisiana prosecutors likely would not have sought — and surely would not have secured — a death sentence had Kennedy admitted guilt).

Infidelity and child rape are quite different, no? I think what got most people about Patrick Kennedy was the child rape, not the lying about it. It's certainly true that defendants who confess and seek a plea bargain are much less likely to be put to death than those who proclaim their innocence, but that seems to me to have more to do with resource allocation and the incentives of the plea bargaining process than with any sort of American obsession with honesty.

Posted by: | Mar 21, 2008 9:42:57 AM

Good point, 9:42:57, that plea discounts are likely in most cases more a story of efficieny concerns than an "American obsession with honesty." Nevertheless, I think the "liar" label --- or the broader notiong that the cover-up is often seen as worse than the crime --- has a huge impact on specific sentencing outcomes.

Consider, as another example, Enron sentences: Fastow was undoubtedly the most culpable actor, but he got 6 years in prison. Skilling got 24+. Of course, other factors again matter, but I think America always wants an apology --- even if it is not sincere --- and our sentencing outcomes show this reality often in dramatic ways.

Posted by: Doug B. | Mar 21, 2008 11:10:50 AM

Your post has a "one of these things is not like the other" problem. Patrick Kennedy's example does not belong with Spitzer or Clinton. Surely comparing horny pols to a child rapist was just a brain fart.

Regarding the horny pols, on the question of whether it's the "combination of the sex and the lying that really troubles most Americans," IMO most Americans, in their heart of hearts, are not "troubled," but merely titillated.

Either way, clearly it's the sex more than the lying that gets you in trouble, because the process is mostly media driven. Politicians lie all the time, but when they lie about sex it draws more readers/viewers, allowing the media to capitalize on the ratings to sell ads. Ditto for baseball players lying, which is why you don't see any baseball GMs called before Congress under oath.

Nobody's really "troubled," for the most part. It's all just part of the slow methodical process of the entire MSM becoming STAR magazine, with publicity-seeking pols following them eagerly down the primrose path.

Posted by: Gritsforbreakfast | Mar 21, 2008 11:14:06 AM

Prof. Berman, I think I agree with your broader point about the role of apologies/remorse/"acceptance of responsibility" in the sentencing process, just not the Patrick Kennedy example as an illustration of it. Thank you for the response.

Posted by: 9:42:57 | Mar 21, 2008 11:28:11 AM

Kids, is having sex with a prostitute really an "affair"?

Posted by: S.cotus | Mar 21, 2008 11:35:55 AM

I really don't think that in Spitzer's case it is the combination of sex and lying. I believe that it is the fact that many felt that the corporations & individuals he prosecuted were the victims of prosecutorial over reach. They also felt that he should not be given any less attention when his time came.

Clinton lied about sex. This lie did not deserve the attention it was given. What did inspire attention was that as the most powerful politician in the state of Arkansas, he had a clerical worker - who appeared to be very limited - delivered to him in a hotel room where he partially disrobed and asked for a sexual favor. He did this at a time when he verbally approved sexual harassment laws. Lying to the Grand Jury was only a small part of the public outrage. Lying about an affair would be only human.

Just another life style crime. We love them, and we pay the price.

Posted by: beth curtis | Mar 21, 2008 10:36:29 PM

"It's certainly true that defendants who confess and seek a plea bargain are much less likely to be put to death than those who proclaim their innocence, but that seems to me to have more to do with resource allocation and the incentives of the plea bargaining process than with any sort of American obsession with honesty."

This is moral relativism at its finest. The rights found in the Bill of Rights are absolute, not relative, but they become relative depending on the burden exercising them costs the state.

Posted by: | Mar 23, 2008 2:51:07 PM

What is wrong with “moral relativism.”

First of all, I don’t think you have thought too much about what the term means.Does it mean that someone else’s morals are continuously changing? If so, how can you be so sure that it is not your own morals that are the one’s changing.

This is a great term to throw around to the lower classes or people who are not tasked with thinking about ethical or moral issues. But, otherwise, when you utter it in front of people that gotta deal with philosophical issues, it seems like a political applause line.

Secondly, if you view laws as the embodiment of morals, then any change in the law, for whatever reason is “relative.” The “rights” in the bill of rights have been continuously re-interpreted, and, in fact, the post-civil war amendments drastically changed them. Any amendment of the constitution (or reinterpretation of its text) is an admission that morals are changing.

The same goes for norms in society. In the past, homosexual conduct was considered immoral. Now, the only people who think that are religious wackos on the fringes of our society that are occasionally placated for political means. Is this relativism?

The problem with Spitzer isn’t sex. It isn’t lying. It is political. For whatever reason, Spitzer wasn’t politically popular. Some say this was because of his actions as AG. Some say this was because of his actions as governor. Whatever the case, whenever he showed some weakness, nobody wanted to defend him.

Posted by: S.cotus | Mar 24, 2008 1:21:37 PM

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