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October 16, 2009

Friday forum: What kind of sentence would you give to Roman Polanski?

The question in the title of this post is inspired by this new FindLaw commentary, which is headlined "What Kind Of Sentence Is Roman Polanski Facing?".  Here is how the commentary starts and ends:

Film director Roman Polanski's fate has been much debated recently. Polanski, as readers are likely aware, was arrested in Switzerland and now faces extradition to California, where he pled guilty to having had sex with an underage woman in 1977, but fled before being sentenced. The most exceptional current reporting on this case has been in The Daily Beast, by former Los Angeles County prosecutor Marcia Clark. She revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing. And more recently, she has reported on the truly voluntary nature of the Polanski plea.

Facts, however, have had little impact on Polanski's supporters -- who include Ann Appelbaum at the Washington Post (whose husband is a Polish official lobbying for Polanski's release, a fact she failed to mention), Joan Shore at the Huffington Post (who is a friend of Polanski), and many in the Hollywood community. Others, like Kate Harding (who has no ties to Polanski) at Salon, believe that this captured fugitive should face the music for his admitted criminal behavior. I feel confident that Harding's view represents that of the overwhelming majority of those who have thought carefully about this subject.

A front-page story entitled "In Polanski Case, '70s Culture Collides with Today," which ran in the October 10, 2009 New York Times raised, but did not answer an interesting question: Assuming Polanski is finally sentenced, what sexual standard would the judge apply – the standard applicable at the time of the crime or today's tougher standard?...

Based on Professor [Lynn] Branham's analysis, not to mention his fugitive status, sentencing will no doubt be much worse for Polanski now than it would have been in 1977-1978, a fact that he and his attorneys surely appreciate. No doubt Polanski is looking for some way, any way, to get back to France, which refuses to extradite its citizens. Last time, Polanski escaped by simply jumping on a plane. This time, it will require all of the creative directing talents he can muster, given the script of this story.

This commentary does a solid job describing the basic issues likely to impact Polanski's eventual sentencing fate, but on a Friday afternoon I thought it might be fun for folks to use the comments to suggest the kind of sentence they would like to see given to Roman Polanski. Obviously, there are no right or wrong answers here, and my students know I always give extra points for creativity.

October 16, 2009 at 04:14 PM | Permalink

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Comments

Certainly, Polanski cannot claim the morays of the time. He fled. Therefore, he bears the risk of the changing times. Moreover, his flight has harmed the victim, so that's aggravating.

Posted by: federalist | Oct 16, 2009 4:32:30 PM

Hasn't years of luxurious living in Europe and continued professional success been enough punishment for the mere crime of raping a child and fleeing a sweetheart plea bargain?

Since he'll get the benefit of constitutional protections against (and state repeal of) the crimes of sodomy and oral copulation, he should bear the downside of decades of change, too. It's his fault he wasn't sentenced back then.

Assuming they don't charge / try / convict him on anything else, under current prevailing norms of sentencing, I'd give him 3 years for the crime. I'd then charge him with the escape, and demand he plea to 3 more years.

Posted by: Max Kennerly | Oct 16, 2009 4:54:21 PM

Articles like this crack me up. John Dean, a former Associate Deputy Attorney General of the United States, cites the former Los Angeles County prosecutor Marcia Clark, who "revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing."

Then he criticizes the potential conflicts of interests by those who support Polanski. But was this "former colleague" lying then or is he lying now? Doesn't matter. What Marcia Clark says is gospel.

In Legal Research, Analysis, and Writing,, William H. Putman has a section of effective legal writing. Things like putting facts unfavorable in the middle where they will be glossed over, using the active voice and things like this:

Ineffective: "The defendant states...."
Effective: "The defendant alleges...."
Ineffective: "The defendant's position is...."
Effective: "The defendant claims...."

I don't know what Polanski's sentence should or will be, but do find it funny that persuasive writing glosses over the possibility that the judge's misconduct tainted the issue. Indeed, the word "misconduct" isn't in the article though a later judge "appeared to agree that the prosecution and judge in Roman Polanski's 1977 trial engaged in 'substantial misconduct...'".

In other words, the "news" once again is able to shift the spin away from government misconduct to how much better tough-on-crime is in our current Utopian society. Other than the Marcia Clark section, it is a very interesting article, but the Marcia Clark section is designed to sway the focus and color the rest, which is why there is no mention at all of the victim wanting to drop it.

But still, it would be interesting to hear from those who can guess on the sentencing.

Posted by: George | Oct 16, 2009 5:06:33 PM

i have to agree with you george. Yes what he did was wrong. But some of the evidence shows that it has hardly rape and that she and dear old mama wanted to use sex with him to advance her cinema career. Then you add in the criminal actions of the DA and Judge. Sorry its a wash. Then this criminal action of the new DA to ambush a FRENCH citizen in a 3rd country since they know under FRENCH LAW the french can't extradicte their own citizens.

the only ones who need to be in jail at this point is the NEW DA! and any of the idiots who went along with his actions.

Posted by: rodsmith3510 | Oct 19, 2009 2:44:02 PM

just hit me. this is two-faced hypocracy at it's best. I stil have seen no action from the u.s on extraditing it's citizens to ITALY for the kidnapping of innocent people by the CIA! even though THEY HAVE BEEN CHARGED and a TRIAL is proceding as we speak!

Posted by: rodsmith3510 | Oct 19, 2009 2:45:59 PM

I'd give him the maximum sentence allowable under California law. He deserves it for the crime itself, his lack of remorse, his arrogance and his flight before sentencing.

By the way, even if the victim's mother pushed her daughter on Polanski, the girl was still only 13. And Polanski knew full well she was only 13. There is absolutely no excuse for his behavior. I'm not sure about California, but in many states 13 is so young that an adult having sex with a 13-year-old is automatically considered to have committed rape (Whoopi Goldberg's so-called "rape-rape") and not statutory rape which is reserved for adults having sex with those whose 18th birthday isn't as far off.

Posted by: Alpino | Oct 24, 2009 1:22:54 AM

Polanski's knew what he was doing back then with the girl. He knew what he was doing when he went to France. He was arrogant toward US law. He should face "Justice". The problem is that JUSTICE does not exist in America. Instead there is a system of special interests, back room deals, and simple failure to follow the law.

The DA and judge allowed this case to become mired in controversy. Now because the case has a taint of corruption, it should be dropped. Justice cannot be done now.

The number one reason for dropping this case is that the victim, evidently, has publicly asked to drop the case. If this is true, the government is wasting more taxpayer funds to pursue publicity.

Posted by: Libertarianman | Oct 26, 2009 10:34:39 PM

sorry

"By the way, even if the victim's mother pushed her daughter on Polanski, the girl was still only 13. And Polanski knew full well she was only 13. There is absolutely no excuse for his behavior. I'm not sure about California, but in many states 13 is so young that an adult having sex with a 13-year-old is automatically considered to have committed rape (Whoopi Goldberg's so-called "rape-rape") and not statutory rape which is reserved for adults having sex with those whose 18th birthday isn't as far off."

this is now! i dont' think it was that bad back in the 70's or they wouldn't have offered him 90 days!

what it all boils down to is he had a deal the judge seeing stars in HIS EYES decided to toss it and showboat and he found out and LEFT...GOOD FOR HIM. me i'd have left to. but i'd probably gone after the judge on my way out of town for his treachory!

Posted by: rodsmith3510 | Oct 27, 2009 2:11:47 AM

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