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October 23, 2017

Reviewing publicity's role in federal sentencing decision-making

This new Forbes piece by Brian Jacobs, headlined "The Role of Publicity in Sentencing," reviews how a case's high-profile nature can play a role in a defendant's federal sentencing. Here are excerpts concluding with the author's closing criticism of "any substantial reliance on publicity as a sentencing factor":

Should defendants in cases that attract press coverage be given longer sentences than defendants in cases that pass unnoticed?  The knee jerk response of anyone familiar with the basic principle of equality under the law would likely be a resounding “no.”  And yet, as some recent cases have starkly demonstrated, courts can and do consider a defendant’s level of notoriety as a factor weighing in favor of harsher punishment.

The ability of courts to take publicity into account at sentencing traces back to Section 3553(a) of Title 18, United States Code, which provides a list of factors that district courts are required to consider in imposing sentence, including “the nature and circumstances of the offense and the history and characteristics of the defendant.”  One of the factors district courts must consider is “the need for the sentence imposed— to afford adequate deterrence to criminal conduct.”...

The extent of publicity a case has received and will continue to receive naturally figures into the analysis of whether a given sentence will further the goal of general deterrence.  As one commentator wrote some time ago, “[i]f a case has for some reason attracted great publicity, a severe sentence could be expected to have great deterrent effect.  If, on the other hand, the publicity is minimal and the sentence probably will be known only to the defendant himself and the officials involved with the case, the judge could let the offender off with a light sentence without sacrificing any general preventive effects.”

As evidenced by some recent cases, courts have generally followed through on this reasoning and have considered the extent of a case’s publicity as one factor weighing in favor of higher sentences.  In Ross Ulbricht’s appeal of his conviction for crimes “associated with his creation and operation of an online marketplace known as Silk Road,” the Second Circuit Court of Appeals condoned the district court’s consideration of the extent of the case’s publicity as one factor justifying the life sentence imposed. Specifically, the Second Circuit approved the district court’s reference to the general deterrence that would result from the “unusually large amount of public interest” in the case.  (Ironically, it appears that the Ulbricht’s life sentence and the attendant publicity, far from deterring crime, “actually boosted dark web drug sales.”)

By the same token, in sentencing former congressman Anthony Weiner to 21 months’ imprisonment for transferring obscene materials to a minor, U.S. District Judge Denise L. Cote made express reference to Mr. Weiner’s high profile: “Because of the defendant’s notoriety, gained well before he engaged in this criminal activity, there is intense interest in this prosecution, in his plea, and his sentence, and so there is the opportunity to make a statement that could protect other minors,” she said.  Judge Cote elaborated that, “[g]eneral deterrence is a very significant factor in this sentence.”...

But even as courts are required to consider general deterrence, the consideration given to a case’s publicity, in particular, should be minimal.  The use of general deterrence as a sentencing factor is inherently unfair to an individual defendant, to the extent that the individual defendant’s case is used as a “means for the public good.”  To base a defendant’s sentence on the extent of the publicity a case has received or will receive only exacerbates this unfairness, as notoriety has even less to do with the individual defendant’s case, and more to do with the whims of the press corps and the Department of Justice’s media operation.  In the long run, any substantial reliance on publicity as a sentencing factor, rather than deterring crime, seems just as likely to increase the risk that people will, as one commentator wrote, “find the system unjust” in violation of “the principle of equality before the law.”

October 23, 2017 at 05:52 PM | Permalink

Comments

Yet, Wiener got a comparative slap on the wrist.

Posted by: Fat Bastard | Oct 23, 2017 7:09:26 PM

It's interesting how high profile cases like these do get higher sentences - what about 18 USC 3553(a)(6) - he need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. Can you then say the higher sentence for the high profile defendant is a warranted disparity?

Posted by: atomicfrog | Oct 24, 2017 10:06:02 AM

It's interesting...- the need to avoid... (bad typo earlier)

Posted by: atomicfrog | Oct 24, 2017 10:07:36 AM

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