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March 13, 2013

Federal judge decides "self-torture" not quite sufficient punishment for corrupt NJ mayor

The headline of this post is a slightly-tongue-in-check reaction to the lead paragraph in this new local story about today's federal sentencing of a corrupt politician in New Jersey.  Here is how the article begins and some more notable sentencing details:

The former mayor of New Jersey’s largest suburb was sentenced Wednesday to more than three years in prison for corruption after telling a judge he lives with “self-torture” every day over the crimes.  Former Hamilton Township Mayor John Bencivengo also was ordered to participate in a mental health program in prison.  A forensic psychologist testified at the sentencing that Bencivengo has suffered from major depression since 2008.

Bencivengo also must pay back at least $7,400 in money he accepted as part of a bribery sting.  In addition to his 38-month federal prison sentence, he will also face three years of probation when he is released and must pay thousands of dollars in fines.

Bencivengo, 58, took responsibility for his actions and cried in court as he spoke about the impact the case had on his 90-year-old-mother. “I have great remorse, anxiety and emotional self-torture on a daily basis over these uncharacteristic circumstances,” Bencivengo said....

Bencivengo had faced up to five to six years in prison.  U.S. District Judge Anne Thompson said she considered 60 letters written on the former official’s behalf in lowering the sentence, but had to consider he knowingly accepted money he shouldn’t have.  “He has thrown away so much for $12,400,” Thompson said.

Bencivengo was convicted in November on extortion, money laundering and bribery-related counts.  He resigned as mayor of the Mercer County community the day after he was convicted. Federal prosecutors said Bencivengo took the bribes from a health insurance broker in 2011....

Bencivengo’s lawyer argued the money was a loan.  But U.S. Attorney Harvey Bartle said Bencivengo knew exactly what he was doing when he accepted the first $5,000 in the form of a check made out to a former employee’s wife.  Bartle said Bencivengo also acted with official misconduct for accepting cash payments during a weekend trip to Atlantic City. “Government does not take place in Atlantic City hotel rooms,” Bartle said.

All self-punishment jokes aside, I continue to wonder if anyone has assembled a database with federal sentencing outcomes in notable local and state political corruption cases.  My rough sense is that the range of federal sentences in these notable settings are all over map --- in part because there are so many highly debatable aggravating offense facts and mitigating offender circumstances which might be stressed in different ways by different lawyers and judges in these cases, and in part because it seems to me quite difficult to figure out just what amount of imprisonment is "sufficient but not greater than necessary" given that the defendants in these cases seem very unlikely to pose any real risk to public safety and also may be functionally unable to again commit political fraud.

March 13, 2013 at 05:58 PM | Permalink

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I have asked this before, what about physical torture resulting from the crime, way beyond any punishment by the criminal law?

An arsonist get burns over his body, spends a year in a burn unit having skin torn from him, and pain meds no longer work.

A rapist gets his eyes justifiably gouged during a forcible rape, and is eyeless now.

A bank robber is shot during a shootout, and is paralyzed from the waist down.

Any sentencing credit in case law?

Posted by: Supremacy Claus | Mar 13, 2013 7:16:18 PM

Isn't it "sufficient but not greater than necessary" to accomplish the enumerated purposes of punishment? And, in addition to incapacitation and specific deterrence (of the defendant him or herself), isn't one of those enumerated purposes the general deterrence of others who might be tempted to commit similar crimes?

To me, that should be the driving factor in these sentences, as in insider trading and other white collar sentences. General deterrence is cited all the time w/r/t crimes of violence, even though the type of person who commits robbery, burglary, murder, etc., in the usual case, is most definitely *not* acting as a classical economic "rational actor" who weighs the costs and benefits of criminal conduct. To me, the theory actually fits much better when you are dealing with powerful defendants who have societal status and assets. First, because these people have more to lose, they are more likely to weigh costs and benefits. Second, the fact that they have attained such status is itself evidence that they are able to act rationally and strategically in their own self-interest, engage in constructive long-term planning, etc. Third, fraud and white-collar crimes -- particularly when they involve schemes that persist over time -- generally are crimes of deliberation and care, rather than crimes of passion or impulse.

So, I would say that the person's likelihood of reoffense is mostly beside the point at a sentencing like this. The case for a relatively high sentence should be driven by general deterrence, as well as retribution for the specially culpable circumstance of having abused a position of public trust (a circumstance which both increases the "seriousness" of the offense and the need for the sentence to promote the very "respect for the law" that is diminished when those charged with upholding the law are the ones who break it).

Posted by: anon | Mar 14, 2013 11:06:40 AM

You are right, anon, that 18 USC 3553(a)(2)(B) speaks of a punishment serving the need to "afford adequate deterrence to criminal conduct." And I think you articulate one of the reasons many judges are eager to give some significant prison time in these political corruption cases. But what sensible metric enables a judge or prosecutor to conclude that 38 months in prison --- as opposed to 380 months or 3.8 months or any number in between --- is like to be the number that is a sufficient, but not greater than necessary, amount of prison time to "afford adequate deterrence to" this type of criminal conduct?

As I suspect you know, defense attorneys will often say --- with justification --- that the loss of prestige and the other formal and informal consequences of a federal prosecution and conviction is "punishment enough" to serve all the 3553(a) purposes. And, of course, prosecutors will often say --- with justification --- that only a significant prison term is a just and fair response and that the loss of status should not be part of the equation. The text of 18 USC 3553(a) does not help answer the question of which kind of sentencing plea should prevail, nor do studies of general deterrence (which, as a group, typically stress the certainty and swiftness of punishment over its severity).

Add all that up, and I continue to not be surprised if/when prosecutors and judges come up with very different "going rates" for these kinds of offenses.

Posted by: Doug B. | Mar 14, 2013 3:07:24 PM

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