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August 25, 2011

"Deterrence key issue" says editorial about Fumo case, but just how much prison time is needed to deter?

The Scranton Times-Tribune has this new editorialresponding to the decision by the Third Circuit to reverse and remand the 55-month sentence given to former corrupt state pol Vincent Fumo.  The piece is headlined "Deterrence key issue," and here are excerpts:

As U.S. District Judge Ronald Buckwalter sentenced Vincent Fumo in 2010, it was hard to tell whether the former state senator from Philadelphia had been convicted of 137 fraud and obstruction of justice crimes against the people of Pennsylvania or a traffic violation.

After praising Mr. Fumo for his "good works," Judge Buckwalter sentenced him to 55 months in federal prison, far below the sentencing guidelines based on the offenses, including millions of dollars in fraud and destruction of evidence.

Tuesday, a majority of a three-judge panel of the U.S. 3rd Circuit Court of Appeals found that Judge Buckwalter owes an explanation for his leniency. The prosecution claimed in its appeal that Judge Buckwalter had failed to properly calculate $4 million worth of fraud by Mr. Fumo in abandoning the sentencing guidelines.

That doesn't necessarily mean that Mr. Fumo will receive a higher sentence from Judge Buckwalter, even though Judge Julio Fuentes wrote: "This evidence of Fumo's intent to divert the funds was overwhelming, and the district court's refusal to apply a two-level enhancement was an abuse of discretion." Prosecutors had sought a sentence of at least 121 months....

In corruption-plagued Pennsylvania, the ultimate outcome of this case is very important for the sake of deterrence. Several state legislators await trial on state charges. State Sen. Jane Orie awaits retrial on local charges in Allegheny County. Former state Sen. Raphael Musto of Luzerne County has been charged with corruption by federal authorities, who also are investigating former state Sen. Robert Mellow.

It's unfortunate that the web of corruption in so many aspects of governance in the commonwealth must be unspun by federal prosecutors rather than by elected representatives. It's vital, for the sake of clean government, that the courts recognize the need for deterrence when sentencing those who abuse their public offices for personal gain.

I largely agree with the basic theme of this editorial -- namely that deterrence can and should be a key issue in the sentencing of corrupt public officials.  That said, I would hope that Fumo's now reversed sentence of "55 months imprisonment, a $411,000 fine, and $2,340,839 in restitution," would generally be a severe enough sanction to make public officials think twice before going crooked. Moreover, it is well known that the certainty and swiftness of a punishment often matter much more than severity in serving the goal of deterrence.

I do not mean these comments to be a blanket defense of the sentence that Fumo initially received.  But I do mean to highlight the difficulty of turning a general concern for deterrence into a specific sentencing outcome and also to question whether any pol is likely to be more deterred if (and when?) Fumo's prison term gets a little (or a lot) longer.

Related posts on Fumo sentencing and appeal:

August 25, 2011 at 05:07 PM | Permalink


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I forget and don't want to go looking for it because searching PDFs is hard for me, but did they also rule that the charitable organization enhancement must also be applied or was that only the concurring judge?

And I would say that this is an area where no amount of punishment is too lenient. If it were not directly disallowed by the constitution I would even go for corruption of blood in such cases. Perhaps someone would think far more carefully if their family members were to be directly punished for their own misdeeds.

As for his good works, I'm with Bill Otis' general characterization of such folks, it's very easy to be charitable with other people's money. We should be able to expect our politicians to be honest and it should not count as any virtue that the corrupt also do work that fulfills their responsibilities. After all, without such work they would be unlikely to remain in office able to continue their graft and other schemes.

Posted by: Soronel Haetir | Aug 25, 2011 10:29:53 PM

Specific deterrence (of the defendant) OK.

1) General deterrence (of others), not OK, unconstitutional. To punish the person to prevent the speculative future crimes of people the defendant has never met violates the Fifth Amendment Due Process right to a fair hearing. Why has the defense never used that argument? The reason is that they want to generate more disputes in court. Furthermore, general deterrence represents an improper motive and represents an ethics violation by the prosecutor.

2) If a court were to allow general deterrence as part of sentencing, I would demand a Daubert hearing to show where the data support a general deterrent effect of longer prison sentences. it can be shown that the likelihood of getting caught deters others. It can be shown that the immediacy of punishment can deter. the effect of severity cannot be shown.

3) If evidence exists for such an effect, I would demand proof that of the effect of the specific sentence of the case.

4) Incapacitation is the sole mature goal of the criminal law. Does this elderly politician need to be incapacitated in a cage versus on the outside?

Posted by: Supremacy Claus | Aug 26, 2011 9:03:23 AM

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