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December 11, 2011

Reflections on Blago's sentencing, deterrence and the privilege of privilege

The New York Times has published two lengthy pieces by columnist James Warren that effectively capture some of my (final?) thoughts about Rod Blagojevich's federal sentencing this past week.  Here are the headlines, with links and excerpts:

"What Blagojevich’s Sentence Says About Corruption and Greed":

As for a link between a tough sentence and deterrence, the key distillation came earlier from Reid Schar, part of a prosecution team that deserves credit for taking a confusing set of tactics in the first trial, which ended in a hung jury on 23 of 24 counts, and streamlining a successful retrial.

Mr. Schar argued that tough sentences work particularly well with white-collar criminals, like Mr. Blagojevich, given how such a class of bad actors is smart, educated and driven by greed, as opposed to ideology. “And greed,” he said, “can be deterred.”

Really? After the verdict, I ran into two federal judges and told them about those comments. One was a Republican, the other a Democrat; both are fair-minded public servants — and both laughed. “Deter greed, eh?” said one. “Good luck!”

When I told Jeffrey Seglin, an ethicist and director of the communications program at the Kennedy School at Harvard, he said people’s values did not change much once they reached adulthood. He also doesn’t buy into the logic of deterrence for most politicians.

Since the greatest corruption, both legal and illegal, is found in the financial sector, I asked Jim Cramer, the brainy host of CNBC’s “Mad Money,” what Wall Street thinks of tough sentences for white-collar criminals. He’d been on a conference call with bankers when word of the Blagojevich sentence arrived. “It took their collective breaths away,” Mr. Cramer said.

“They are still reeling from the Raj sentence,” he added, referring to the 11-year term given in October to Raj Rajaratnam, a hedge fund kingpin convicted of insider trading. “Nothing scares these guys more than jail time,” he said, referring to the Wall Street world.

Will a new, cleansing fear among the political class be the true Blagojevich legacy? I’d like to think that Mr. Cramer is on the mark. But most politicians will probably conclude that Blago’s real error was stupidity and will seek similar ends in a subtler fashion.

"Let’s Do Something About Privilege, Donors, Corporations and the Constitution"

In wondering what lessons are to be drawn from Mr. Blagojevich’s fall, I’m drawn to ... technical realities involving the administration of justice.  Some of the latter were suggested by Alison Siegler, a defense lawyer who runs the federal criminal justice clinic at the University of Chicago Law School.

Early this year, District Judge James Zagel, who sentenced Mr. Blagojevich to 14 years in prison, sentenced Brian Brown, a South Side drug addict Ms. Siegler represented, to 10 years and 8 months.  He had pleaded guilty to selling two ounces of crack cocaine to a government informant for $200.

In the Blagojevich case, the sentencing guidelines meant he should get from 30 years to life. The prosecution conceded those were onerous and urged a 15-to-20 year range, with the judge ultimately lowering the low end and giving him 14 years.  The guidelines for Mr. Brown’s drug offense, even after he accepted responsibility and pleaded guilty, were 22 to 27 years.  The government stuck to that range but Ms. Siegler and her students persuaded Mr. Zagel to go lower.

She showed me other cases of hers in which the government insisted on holding to stiff parameters of federal sentencing guidelines that many concede are harsh and inconsistent, especially when drugs are involved. Her clients included an 18-year-old drug courier who got a no-mercy sentence for importing heroin from Nigeria to Chicago in his stomach and a Mexican landscaper who pleaded guilty to illegal re-entry to this country. The landscaper was raised here illegally by his parents and, after his deportation, returned for 12 years during which he bought a home, raised three children and even paid taxes.

The pattern she outlined is clear: a certain type of defendant, whose case probably won’t elicit public attention, isn’t cut the same slack as Mr. Blagojevich and other white-collar defendants. Several federal judges privately agreed with her.  “Blagojevich highlights the way in which the prosecution creates sentencing disparities based on privilege,” Ms. Siegler said.

I would throw into the (final?) reflective mix here a few other notable white-collar federal sentencing stories that unfolded just this week with less fanfare (except on this blog):  a major Medicare fraudster getting a prison term of 35 years in Florida (details here), the affirming of a 10-year prison sentence for lying to FBI agents (details here), and a prosecutorial recommendation that he serve 15 months in prison for being evasive about his steroid use in grand jury testimony (details here).  

I am not sure what to make of all these (disparate?) sentencing data points, but I am sure that they reinforce my view that it is especially hard to assess with confidence whether and when a white-collar prison sentence is just and/or effective.  That reality, in turn, highlights why having truly sound and balanced white-collar sentencing guidelines, rather than current guidelines which actually recommend life without parole for a first offender like Blago seems to me especially important.)

Some recent and older related posts on the Blagojevich case:

December 11, 2011 at 02:42 PM | Permalink


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People will stay perplexed, inconsistent, and stupid looking while making sentencing decisions based on retribution. Move to an utilitarian analysis, and the results are self-evident, consistent, safe, and wise sounding. Because retribution comes from a religious book, the Bible, written by Iraqi tribes people, 3000 years ago, it is unlawful in our secular nation, atavistic, and stupid looking.

Posted by: Supremacy Claus | Dec 11, 2011 3:05:47 PM

The whole thing can be summed up pretty quickly:

The first article says deterring greed doesn't work, so we should give white collar types shorter sentences.

The second article says druggies get hammered out of class or race bias, so we should give them shorter sentences.

Bottom line: We should give everybody shorter sentences.

Coming from the NYT, which has never seen a sentence too lenient (expect those given corrupt Republicans), this is supposed to be a surprise?

Oddly -- or, really, not so oddly -- missing from all this is the preeminent fact of the last two decades, which is that longer sentences and more incarcertaion have coincided with, and in significant measure have caused, a startling decrease in crime. Likewise missing is the fact that this enormous decrease has saved millions if not billions of dollars in victim costs that have NOT been incurred. And -- guess what!!! -- those savings always get brushed off or omitted altogether when the ever-popular subject of cost comes up.

Far out!

Posted by: Bill Otis | Dec 11, 2011 6:33:19 PM

my problem with it is here!

"As for a link between a tough sentence and deterrence, the key distillation came earlier from Reid Schar, part of a prosecution team that deserves credit for taking a confusing set of tactics in the first trial, which ended in a hung jury on 23 of 24 counts, and streamlining a successful retrial."

EVEN the prosecution admits without that first LEGAL bite at the apple they could never have REBUILT their case to get a conviction during the SECOND ILLEGAL TRIAL! the very fact of the Hung jury proves the state did NOT PROVE IT'S CASE BRD! otherwise THERE WOULD NOT HAVE BEEN A HUNG JURY....would have been a conviction! so like others this is an illegal trial, sentence and detention and he and his family have every legal and moral right to escape it no matter who they have to hurt!

Posted by: rodsmith | Dec 11, 2011 7:13:35 PM

As a non-attorney, what troubled me about the defence of the former Gov. is what disturbed me about the defence of the former Pres. (Clinton).

To wit: ->Blagojevich decried at one point that though he may have been serious in attempting to extort money in exchange for the U.S. Senate Seat, this is standard, permissible practice among politicians in Chicago.

I find this somewhat analogous to
->Clinton Counsel Robert Bennett as I watched him on TV on the Floor of the House or Senate in 1998, declare that what may be prosecutable for an ordinary citizen is not for a President, i.e. perjury, tampering, & obstruction.

Government of laws, not of men should it be (John Adams, 1774, in Yoda-speak).

Posted by: Adamakis | Dec 12, 2011 10:15:12 AM

Speaking of different standards for well-off defendants, what about bail? I am amazed that Jerry Sandusky (Penn State case) is walking around, showing up to his hearings in a suit, unshackled. I have never seen an indigent/lower-income defendant given attainable bail (or, often, any bail at all) when facing charges that serious.

Posted by: Anon | Dec 13, 2011 4:41:13 PM

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