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December 11, 2016

You be the federal sentencing judge: how long a prison term for convicted Philly US Representative? UPDATE: He got 10 years!

Ap_927490019645-2I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals.  Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished.  But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify always throwing the book at any and all serious white-collar offenders.  

With that backdrop, I am not surprised to have seen this past week a pair of articles reporting on lawyers are fiercely debating the federal sentences for a convicted politician from the City of Brotherly Love.  The sentencing of Chaka Fattah takes place this Monday, and these two local articles, linked here and with their introductions, provide the basics for any wanna-be federal sentencing judge:

"Feds recommend 17-22 years in prison for Fattah"

Chaka Fattah could spend the next two decades in prison if federal prosecutors get their way at the former congressman's sentencing hearing next week. In a memo filed with the court late Monday, government lawyers described the Philadelphia Democrat as "self-serving" and utterly unremorseful and urged U.S. District Judge Harvey Bartle III to sentence him within a range of 17 to 22 years in prison.

"Fattah understood the power and trust given to elected officials and that corruption benefits the few at the expense of the many," Special Assistant U.S. Attorney Eric Gibson wrote. "He chose to violate the trust of his constituents and the taxpayers to line his pockets and advance his personal and professional goals at their expense."

That punishment, if imposed, would far exceed those received by other Philadelphia-area politicians who ran afoul of federal corruption cases. State Sen. Vincent Fumo received five years after his 2009 conviction on 137 counts including conspiracy and fraud. But prosecutors noted that their recommended sentence for Fattah fell well within the federal sentencing guidelines for his crimes. What's more, they said, it tracks with other recent sentences for corrupt politicians, including former New Orleans Mayor Ray Nagin and former Detroit Mayor Kwame Kilpatrick, convicted of similar crimes.

"Fattah lawyers: A 17-to-22 year sentence for ex-congressman would be 'unnecessarily harsh'"

Chaka Fattah's lawyers pushed back against prosecutors Thursday, calling the two-decade-long sentence they recommended for the former congressman "extreme" and "unnecessarily harsh." Such a punishment, they said in a court filing, would be the longest prison term ever received by a member of Congress for corruption.

Instead, the defense urged U.S. District Judge Harvey Bartle III to consider a far shorter term and argued that the Philadelphia Democrat's misdeeds hardly compared to those of politicians found guilty in more serious cases.  "While it is true that Chaka Fattah now stands before this court convicted of serious crimes, he is also a man that has dedicated his entire life to the service of others," defense lawyer Mark Lee wrote.  "As a legislator, he made the education of disadvantaged youth his life's work.  And as a mentor and role model, Chaka Fattah inspired countless young men and women to service and self-improvement."

The defense's sentencing recommendation followed one filed Monday by prosecutors, who argued that Fattah deserves a sentence of between 17 and 22 years under federal sentencing guidelines. Fattah's team, in its filing, countered that the correct guideline range was 11 to 14 years — and suggested a far shorter term than that.

Their back-and-forth set up what is likely to be a contentious court battle Monday when Fattah, 60, will become the first member of Pennsylvania's congressional delegation to be sentenced in a federal corruption case since 1996, when Pittsburgh-area Rep. Joseph P. Kolter was sentenced to six months for covering up his theft of thousands of dollars in taxpayer funds with vouchers that claimed he used the money to buy stamps for his office.

My own punishment views in these kinds of white-collar cases, which may be influenced both by my ivory-tower history and my past work for certain white-collar defendants, lead me to believe that a few years in federal prison (plus a big financial sanction) will usually be sufficient to achieve utilitarian and retributivist goals. Stated slightly differently and in terms of the key directive of federal sentencing law, I tend to view any prison sentence of more than a few years when the defendant poses no real continuing threat to public safety to be "greater than necessary" to achieve congressional punishment purposes.

UPDATEThis Politico article completes the sentencing story in its headline: "Fattah sentenced to 10 years in prison."

December 11, 2016 at 10:36 AM | Permalink


Few people who espouse long prison sentences have ever served time in prison or known what it is like to try to re-enter society afterwards. The truth is that even 2-3 years in prison is a long time, and makes it quite difficult to re-enter society, get a job and resume familial and community ties. My friend Sholam Weiss received the longest white collar sentence in American history, 845 years! After his 2241 habeas corpus petition was litigated by Prof. Stephen Saltzburg, his sentence was reduced by a mere 10 years. As of December 2016, Mr. Weiss's Petition for a Commutation remains pending before President Obama, after Weiss has already served more than 14 years in Federal prison.

Posted by: Jim Gormley | Dec 11, 2016 11:07:40 AM

I loathe this guy. But 17 years?

Posted by: federalist | Dec 11, 2016 3:55:58 PM

I get what Jim says but what galls me is the inherent imbalances in the system. Doug declares that white color criminals are "non-violent" but then so are those that possess child pornography yet the sentencing commission has had no difficulty finding such people violent. As I've said before, violence is a legal term of art that bears no resemblance to what an ordinary person would consider violent. So if people who possess child pornography are violent within this legal term of art I fail to see why it cannot encompass white collar criminals, especially corrupt politicians. And if that is the case all of a sudden 20 years looks a whole lot less harsh for the crime of violence discussed here.

Posted by: Daniel | Dec 11, 2016 4:01:44 PM

Daniel. The legal system is filled with hundreds of constructive doctrines. Constructive means, fictitious. The legal system is thus filled with fraud, and is itself a criminal enterprise.

Posted by: David Behar | Dec 11, 2016 6:26:36 PM

Daniel, the USSC has been trying for years to treat/punish possessors of child pornography like "non-violent" folks, and you show through your comment the pernicious way may people justify long sentences: i.e., well, other folks are getting unfairly slammed, so let's go ahead and unfairly slam another guy.

Put another way, slamming Chaka Fattah with a decades long sentence does not make the sentences given to CP possessors any more fair or effective. And yet, it often does seem that folks like you and others want to embrace a sentencing version of "two wrongs make a right."

Posted by: Doug B. | Dec 11, 2016 7:05:29 PM

Federalist is right. 17 years is unnecessarily long. Consider that for a person like Fattah a felony conviction is a stigma he carries to the grave. He must explain his disgrace to his children and grandchildren. His "friends" will disappear. Too many other consequences to list. Five years in prison is more than ample punishment. As a condition of supervised release, Mr. Fattah should be required to give talks in high schools and business roundtables, Rotary Clubs, etc., on the need for honesty in government. I have not read the pleadings. According to the excerpt above, the government asserts Fattah shows know remorse. If that is truly the case, my view would dramatically change and move toward the government's position.

Posted by: Michael Levine | Dec 12, 2016 9:43:41 AM

should be "no remorse" not "know remorse."

Posted by: Michael Levine | Dec 12, 2016 9:44:28 AM

Ten years is about the high point of what I would say is warranted. Fattah's actions were brazen so he deserves a stiff sentence. But his corruption does not appear to be situations where people were shut out of opportunities. That is a particularly pernicious form of corruption (e.g., bid-rigging) which should be punished incredibly harshly. Fattah is bad--he's not Blagojevich bad. For trying to get Tribune editorial writers fired by threatening Tribune business interests, Blago should have received a life sentence.

Posted by: federalist | Dec 13, 2016 10:31:26 AM

"Daniel, the USSC has been trying for years to treat/punish possessors of child pornography like "non-violent" folks,"

Apparently Doug doesn't read his own blog because he has linked to articles demonstrating just the opposite.

"And yet, it often does seem that folks like you and others want to embrace a sentencing version of "two wrongs make a right."

Two wrongs do not make a right, however sometimes they make a grim satisfaction.

Posted by: Daniel | Dec 14, 2016 3:21:06 PM

Daniel, which articles are you referencing?

I am talking about the huge report the USSC produced in 2012 in an effort to have CP possessors treated/sentenced less severely by Congress: http://www.ussc.gov/research/congressional-reports/2012-report-congress-federal-child-pornography-offenses

I appreciate your candor in saying that, for grim satisfaction, you are inclined to react to one wrong by encouraging another.

Posted by: Doug B. | Dec 14, 2016 5:42:30 PM

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