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June 16, 2009

New York Times complains (foolishly?) about creative writing sentence

I am intrigued and a bit troubled to see that the New York Times has this new editorial that appears to be complaining about the recent sentencing decision ordering a white-collar defendant to write a book (discussed here).  Here is most of the editorial:

We have not read the little monograph that James H. Lake, a Washington lobbyist at the time, wrote in the late-1990s.... In 1998, Mr. Lake pleaded guilty to making illegal campaign contributions.  The judge in the case, Ricardo M. Urbina of the United States District Court for the District of Columbia, ordered Mr. Lake to set down in writing his description of the criminal code that covered his crime.

Soon there will be another title in what might be called the Urbina canon.  Last week, he sentenced Dr. Andrew G. Bodnar — a former pharmaceutical executive who pleaded guilty to making a false statement to the federal government about the efforts of the company that he worked for to resolve a patent dispute — to write a book about his case as a warning to other executives.

We do see the possibility of justice in this sentence — if Dr. Bodnar hates to write.  But it feels like an invitation to insincerity.  In fact, it feels a little like asking an adolescent boy to explain, in front of his friends, why telling a lie is bad, bad, bad.

Many people in professional life believe they have a book in them.  Whether it ever gets out is usually a matter of passion, persistence and chance, not court decree.  We don’t know if there is any deterrent value in Judge Urbina’s approach (beyond deterring us from reading the product).

Given the vanity in publication, it might be better if he ordered white-collar defendants not to write books about what they did.  Now that would sting.

Though this editorial is not a robust rebuke of Judge Urbina's creative sentencing approach, it is another example of the tendency of the media and others to react too negatively to forms of punishment other than imprisonment.  The NY Times likely would not have even noticed had Dr. Bodnar been given a year in prison, and this editorial never confronts the important reality that most everyone would prefer that a parent order a boy to explain why lying is bad rather than lock that boy in a closet for days or weeks.

June 16, 2009 at 10:19 AM | Permalink


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Tracked on Jun 16, 2009 12:31:05 PM


I'm no fan of the NYT, but I thought the editorial was more funny than troubling. I liked this line in particular: "Given the vanity in publication, it might be better if he ordered white-collar defendants not to write books about what they did. Now that would sting."

I don't think there's a First Amendment problem with the sentence. The mere instruction to write a book, or a monograph or what have you, seems pretty harmless. It would be a different matter if the court instructed the defendant as to what he must say; that would come too close to infringing freedom of thought (or, as the NYT observes, to inviting insincerity). From all I see here, the defendant could comply with the court's order by writing a book about why the law he broke stinks.

Occasionally you'll see, as part of a sentence, an order that that the defendant not be in the company of known criminals (this used to crop up in Mafia cases). I believe such orders were routinely upheld against First Amendment challenges. A fortiori, the relatively mild sentencing order in this case is likely to pass muster as well.

Posted by: Bill Otis | Jun 16, 2009 11:14:59 AM

Bill, a formal sentencing reduction given only for "acceptance of responsibility" seems much closer to "infringing freedom of thought" and/or "inviting insincerity" than instructing a defendant to write a book on a particular topic. Do you think this part of the federal guideline system should be subject to challenge?

I always find remarkable how many people identify problems with creative punishment while being so insensitive to the realities of the status quo.

Posted by: Doug B. | Jun 16, 2009 11:41:55 AM

Doug --

"[A] formal sentencing reduction given only for 'acceptance of responsibility' seems much closer to 'infringing freedom of thought' and/or 'inviting insincerity' than instructing a defendant to write a book on a particular topic. Do you think this part of the federal guideline system should be subject to challenge?"

No. A sentencing system that does not take account of the defendant's attitude toward his crime would be nuts. For good reason, the defendant's attitude counted in pre-Guideline sentencing, and it was more than appropriate to carry that factor forward in the Guidelines.

A sincerely remorseful defendant who understands that he needs to find a different way of thinking about his behavior should get a significantly more lenient sentence than an otherwise similar fellow who snarls at the judge and the PO that his only real mistake was getting caught. The former has already internalized the lesson to be learned, and therefore is far less deserving of a punitive response than the latter, who is trouble waiting to happen.

Posted by: Bill Otis | Jun 16, 2009 12:17:49 PM

But, Bill, you are dodging the hard question. Since defendants know they get a significant prison reduction simply for finding "a different way of thinking about his behavior," aren't we at constant risk of "infringing freedom of thought" or at least "inviting insincerity"?

Please understand, I wholly understand (and generally support) the utilitarian virtue of considering the "defendant's attitude" at sentencing. What I do not fully understand (and mean to critique) is why you and the NY Times worry so much about one judge imposing a creative book-writing sentence, but then give no real thought to the deeper implications of our existing sentencing structures.

Of course, sentencing is not the only setting in which we see these kinds of status quo biases, but it is a setting in which these biases seem to me to be especially pernicious.

Posted by: Doug B. | Jun 16, 2009 1:18:59 PM

The REAL First Amendment issue will come up when one of these defendants writes his book/monograph, but writes it as a defense of his actions, a criticism of the code section involved, a screed on how he was screwed by the justice system, etc. In other words, he will comply with the letter of the "writing assignment" but not the spirit. Then when the court tries to find that he failed to comply, he can argue the First. THAT should be a fun show.

Posted by: CN | Jun 16, 2009 1:26:07 PM

Doug --

The risk of insincerity is ever-present. Indeed, the risk of outright lying is ever-present, and it happens quite a bit. It is the court's job to determine when a contrite attitude is genuine and when it's a put-on.

To say that the defendant has an interest in appearing to be contrite is to say that the sun rises in the East. Neither can plausibly be considered a First Amendment event. The defendant also has an interest in showing up in court in a suit and tie, rather than the tank top and 4000 tattoos he was donning at the time of the crime. But in no realistic sense is the "pressure" to look nice in court a First Amendment event. It's the nature of the beast.

Even if there were some First Amendment tension here, however, the First Amendment would have to give way to the compelling governmental interest in basing a defendant's sentence in significant part on his attitude. It is well established that Constitutional rights are not absolute, and this is one area where the First Amendment burden on the defendant is so small, and the government's interest in sound and utilitarian sentencing so large, that the balancing test isn't really that close.

Don't get me wrong. I think you might be overreading my tepid agreement with the NYT. If you go back to my original post, you'll see that I say explicilty that the court's "creative" sentence is NOT an infringement on the First Amendment. To the extent the NYT thinks otherwise, it is, as usual, wrong.

Posted by: Bill Otis | Jun 16, 2009 1:44:24 PM

If the book sells well, what outcome to the income?

Posted by: Supremacy Claus | Jun 16, 2009 4:34:12 PM

the lawyers get it - but only if they seek it.

Posted by: = | Jun 17, 2009 9:44:45 AM

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