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July 19, 2009

Continued buzzing about the (soft?) sentence given to Fumo

Especially in Pennsylvania's papers, there continues to be plenty of discussion of the 55-month prison sentence imposed on state lawmaker Vincent Fumo for his convictions on various corruption charges.  Here are two stories that caught my eye and provide notable perspectives on both the sentence itself and the debate surrounding it:

The second piece spotlights why there is so frequently political and public pressure for sentences always to go up rather than down: it is very rare that we ever see stories headlined "Criminal's punishment draws outrage as being too harsh."  And, of course, Fumo was given more than a slap on the wrist: the 66-year-old white-collar offender will spend nearly five of his "golden years" in prison and has to pay $2.4 million.  Nevertheless, because he was convicted of so many charges of so much corruption and still got a below-guideline sentence, perhaps it is not surprising that this particular outcome has generated so much Sturm und Drang.

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The same U.S. Attorney's office which now describes as "unthinkable" and "a slap on the wrist" the sentence of 55 months' imprisonment (for a defendant 66 years old, with heart disease, diabetes, and more), plus a fine of $411,000 and restitution of over $1.9 million, had offered a five-year (60-month) one-count plea prior to trial, according to a story this week in the local newspaper. Which is the more serious crime, in their view: fraud and obstruction of justice, or exercising your constitutional rights?

Posted by: Peter G | Jul 19, 2009 1:18:42 PM

Peter G --

One constant refrain on this site is that the government forces too much spending on the criminal justice system. So when the government attempts to reduce costs to the taxpayers by offering a settlement rather than a trial, we should be glad, right?

No, not according to you. We should be outraged that the government is chilling the defendant's "constitutional rights." Only you cite no case holding that the typical plea bargaining process does any such thing, there being none to cite.

A defendant is not going to settle a case unless he has an incentive to do so. The dropping of some (or many) charges is one such incentive.

If you think the government should drive up litigation costs far beyond what they are now, by refusing to offer or entertain plea agreements and taking every case to trial, by all means say so directly. But then please quit complaining the the system costs too much.

Posted by: Bill Otis | Jul 19, 2009 5:06:20 PM

With all respect, Bill (and I mean that sincerely, having argued against you in the Fourth Circuit a couple of times many years ago), your response is not serious. I never said there should be no plea bargaining, never suggested that no consideration in sentence should be offered for pleading guilty, and never implied that any such concession could not take into account both the "acceptance of responsibility" involved and also the savings in unwarranted costs to the system. What I pointed out, is that (if the story that the Phila. Daily News ran is accurate) the prosecutors are now describing as outrageously lenient a sentence essentially the same as that which they themselves were willing to accept (although they haven't publicly acknowledged this), and which would apparently have involved dropping *all* of the many counts of obstruction of justice. Instead the prosecution is now complaining loudly about the judge's failure to impose a sentence not just somewhat higher, but *3 to 5 times* more severe, as if that sentence -- exceeding the defendant's life expectancy -- were obviously the only just outcome to the case. While leniency can of course be extended for a guilty plea, I doubt that the sentence cap that was offered before trial (again, if true) was in fact utterly unjust.

Since I made no claim of reversible error, the absence of any citation to case law is also a red herring. However, examples of a court expressing a sentiment similar to mine can be found in US v Mazzaferro, 865 F2d 450, 457-60 (1st Cir 1989), and US v Crocker, 788 F2d 802, 807-09 (1st Cir 1986).

Posted by: Peter G | Jul 19, 2009 5:51:12 PM

Peter G --

Do you remember the names of the cases?

As to the present topic, a couple of points. First, what sentence the government would be willing to live with if it could have saved the costs of a trial is going to look a lot better to it than what it got -- even if the same or similar -- only after spending a boatload. Second, when I read the article cited, one thing that struck me is that the author said that neither the government nor Fumo's present counsel was willing to make a statement. That means that the views now being attributed are actually someone else's version of what the government supposedly thinks. My suspicion is that the anonymous source is Fumo's first lawyer, who is probably really ticked off that he got fired and blames the government's playing hardball in negotiations for his unpleasant fate.

Of course I don't know that, but I (and other readers of the article) don't know a whole lot, because where you're relying on anonymous sources, there is no accountability and anybody can say anything.

Finally, if the government is overreaching by calling the sentence "a slap on the wrist," then its chances of getting it vacated by the Third Circuit would seem to be real low, certainly in the world post Booker, Gall and Kimbrough. Maybe we should await the Third Circuit's judgment before being too sure that the prosecutor has gone over the edge.

Posted by: Bill Otis | Jul 19, 2009 6:19:13 PM

Fumo took a risk and went to trial knowing that he had drawn one of the more liberal, idiosyncratic, judges in the federal courthouse. This jurist lived up to that billing when he committed two very public blunders. The first was scanning the courtroom filled with Fumo chronies and business partners and opined there was no public outrage over the corrupt senator's crimes.

Last I heard, the government represents the citizenry. The Court badly misread the situation as the torrent of public criticism that followed the sentencing evidenced. Secondly, he publicly questioned whether any sentence he imposed would have any deterrent impact on others. He was right about the second part, the weak and ineffectual sentence he imposed will have no corrupt politicians thinking twice about illicitly lining their pockets.

Posted by: mjs | Jul 19, 2009 7:52:40 PM

Bill-- "...We should be outraged that the government is chilling the defendant's "constitutional rights." Only you cite no case holding that the typical plea bargaining process does any such thing, there being none to cite."

From what I've seen, the typical plea bargain process is the no-visible-injuries equivalent of rubber-hose, phonebook sessions in interrogation rooms of old.

Citizens who experience it seldom complain because of the extortion clause the government routinely puts the "agreements."

Complaining about tyrannical tactics used to compel confessions is tantamount to "failing to accept responsibility" for whatever crime the citizen is accused of committing. Which, of course, means additional punishment.

All the public knows is what the government puts in its press releases, namely that the accused has admitted guilt.

Pretty slippery, Bill, to restrict consideration to "case HOLDINGS." Especially since I've yet to interview a defense lawyer who didn't have at least one horror story about a lopsided process that makes offers most defendants (including the innocent and wrongly accused) simply can't risk refusing.

Peter G said it well. Putting the government to the annoyance of a trial usually triggers a vicious stomping of any citizen foolhardy enough to do it.

Posted by: John K | Jul 21, 2009 12:24:05 PM

John K --

I have to admire the urgency of your views, but with all respect, you are living on a different planet. I have seldom if ever run across anyone whose view of the prosecution as sheer evil even approaches yours.

Posted by: Bill Otis | Jul 21, 2009 8:58:45 PM

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