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October 24, 2011

Is taking money less harmful to victims than a "punch in the face" or selling crack?

The question in the title of this post is prompted by a sentencing argument being made in a notable white-collar case from California.  The back story appears in this interesting article, headlined "Former MoFo Partner Pleads Guilty to Bilking Insurers, San Francisco Schools," which first caught my eye because I happened to be law school classmates with one of the defendants. But the passages in the penultimate paragraph below generated today's sentencing question:

Jonathan Dickstein, a former Morrison & Foerster partner in San Francisco, could wind up in prison after pleading guilty Tuesday to 31 felony counts stemming from a $400,000 scam he and his wife concocted based on their autistic son's education and medical treatment.

Dickstein is scheduled to be sentenced November 15 following his conviction on charges including grand theft, forgery, insurance fraud, and conspiracy, a spokesman for the San Francisco District Attorney's office confirmed Friday.

Dickstein and his wife, Barclay Lynn, were arrested in August 2010 and charged with creating a fictitious in-home care and education provider for their autistic son. The couple used the fake company, Puzzle Pieces, to double bill their medical insurance providers, Anthem Blue Cross and MoFo's own self-insurance arm, and the San Francisco Unified School District. School district lawyers alerted authorities to the scam.

Dickstein — a Stanford University and Harvard Law School graduate and former cochair of MoFo's life sciences practice — resigned from the firm to launch a solo practice five months before he and his wife were arrested....

Lynn, who also pleaded guilty to 31 counts, was sentenced last month to one day in jail and received credit for time served, her lawyer, Douglas Rappaport, said Friday.  She was also sentenced to five years probation, and, along with Dickstein, must repay the stolen money, Rappaport said.

Dickstein and Lynn pleaded "open to the court," according to a district attorney's office spokesman, meaning they rejected a plea bargain offer — which the spokesman would only say included prison time — and left sentencing to the judge's discretion....

San Francisco Unified School District general counsel Maribel Medina said Friday that Dickstein and Lynn have so far repaid $110,000 of the roughly $238,000 stolen from the schools. Medina said she hopes the couple's punishment doesn't end with restitution and that Dickstein winds up incarcerated.   A harsher sentence, Medina says, would help deter other potential scam artists.  "If you're thinking of stealing from the children of SFUSD, you better think twice," she says.  "We're going to catch you and work hard to prosecute you."

Rappaport argues that jail time would be too harsh a sentence.  "Even though, currently, we all love to punish white-collar criminals — it's the same reason why people are occupying Wall Street... the fact is, Jonathan has hurt nobody physically," Rappaport says. "When you take money from people, you hurt them indirectly.  It's different if you punch somebody in the face and it's different if you sell crack."

Rappaport says the public shaming the couple has been forced to undergo and the damage that Dickstein has suffered to his career is punishment enough.  Rappaport argues that, in a way, the school district reaped a windfall because under normal circumstances it would have had to cover at least part of the cost of educating Dickstein and Lynn's son, but instead have received full reimbursement.

October 24, 2011 at 10:24 AM | Permalink

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"[T]he fact is, Jonathan has hurt nobody physically," Rappaport says. "When you take money from people, you hurt them indirectly. It's different if you punch somebody in the face and it's different if you sell crack."

Anybody here wanna bet that, when this same lawyer represents a defendant convicted for selling crack or punching someone in the face, his line will be, "It's not like he scammed them for four hundred thousand bucks."

Posted by: Bill Otis | Oct 24, 2011 3:09:11 PM

Oh come on, it's not like he punched someone in the face! All he did was steal a few hundred thousand dollars from a cash strapped state by exploiting his own autistic child. What would the state have done with that money anyway, spend it on some OTHER, less deserving autistic child? Have a heart, people!

Posted by: anon | Oct 24, 2011 6:52:06 PM

Money represents physical labor in every penny. So the defendant destroyed the labor of a taxpayer, as if he broke someone's facial bone.

Say, we value life at $6 million each. If a theft exceeds that amount, the defendant has destroyed an economic life, and deserves the death penalty as if he murdered the person.

Posted by: Supremacy Claus | Oct 25, 2011 4:34:35 AM

I'd rather be punched in the face (except by like Mike Tyson or Jet Li) than be ripped off of some large sum of money like $50,000 or $100,000.

And I'd *definitely* rather have you sell me some crack than steal money from me. First of all, I can throw away the crack because I don't use it. But even assuming I used it, that is a voluntary (if poor) judgment on my part. I'd rather make my own mistakes than work like a dog for years to save money (which represents security, opportunities for my children, etc.) just to have it vanish because of some self-centered pr--k.

Posted by: Anon | Oct 26, 2011 1:47:37 PM

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