« Another attack on the FIRST STEP Act failing to acknowledge modern political realities | Main | Noting new challenges in securing death sentences now that juror unanimity is required in Florida »

July 22, 2018

"Can a criminal be sentenced to run a 'help desk'?"

The question in the title of this post is the first line of this New York Times article about a high-profile upcoming federal (re)sentencing.  The piece is headlined "What Sentence Should Sheldon Silver Get? His Lawyers Get Creative," and here are excerpts:

Sheldon Silver, the former powerful speaker of the New York State Assembly who was convicted of public corruption charges in May, hopes [he can be sentenced to help-desk duty].

Mr. Silver, 74, is to be sentenced on July 27 in Manhattan, and federal prosecutors asked the judge on Friday to impose a sentence “substantially in excess” of 10 years. But Mr. Silver’s lawyers had a more creative proposal for how he could pay his debt to society.

After a “meaningful custodial sentence,” they suggested, he should be ordered to perform “rigorous” community service, like running a special help desk. In that role, they said, he would be helping New Yorkers “navigate their way through the state bureaucracy to answer their questions, and maximize their chances of receiving benefits to which they may be entitled.” He would be expressing his remorse, they said, and using “his unique skills to assist his fellow New Yorkers.”...

Evidence at the trial showed Mr. Silver obtained nearly $4 million in illicit payments in exchange for taking actions that helped a prominent cancer researcher at Columbia University and two real estate developers.... Mr. Silver, a Democrat, was originally convicted in 2015 and sentenced to 12 years by the judge, Valerie E. Caproni of Federal District Court. After his conviction was overturned on appeal, he was retried this year and found guilty.

“Mr. Silver is a broken man,” his lawyers wrote. “He has been humiliated and disgraced. Most of his assets are gone, either to forfeiture or fine.” But he “is also an intelligent man, with virtually unparalleled knowledge of New York State government,” they noted. Their proposal would allow the judge to exercise discretion “in a way that punishes Mr. Silver, but takes advantage of his unique talents and still affords the possibility of his living the end of his life in freedom.”

To provide a direct answer to the question in the title of this post, I would look to 18 U.S.C. § 3563(b)(12) which states that the court may provide that the defendant work "in community service as directed by the court” as a condition of supervised release. In other words, I think a federal defendant can be sentenced by a federal judge to run a help desk as a form of community service during a period of supervised release. Whether a federal judge will be inclined to do so for Sheldon Silver is another question.

Prior related posts prior to Sheldon Silver's initial sentencing:

July 22, 2018 at 03:41 PM | Permalink


I would be extremely leery of this proposal. It would be very easy for him to steer people wrong (intentionally or not) and it would be very difficult for supervising personnel to show such malingering.

Posted by: Soronel Haetir | Jul 22, 2018 5:12:51 PM

Silver was a detestable human being, for his legal activities. He is not going to prison for his most damaging acts.

I do not even know the specific damage that his crimes caused. For example, did something helpful come from the research he was bribed to fund, or did people enjoy the homes built by the developers? Did his bribed action on their behalf actually accelerate the stupid and sclerotic lawyer designed approval process, then result in an accelerated benefit? A crime must cause harm, not a benefit.

However, he is going to bust the prison health budget at age 74. He does not need to be in a cage. He should be allowed to pay his debt to society in an alternative sentence. His prosecutions may themselves be more criminal than his act, from a utilitarian viewpoint. Putting these stinking prosecutors in metal cages may protect society much better.

Posted by: David Behar | Jul 22, 2018 5:57:46 PM

Sentencing proposal almost sounds like something out of a Greek myth (or the Christmas Carol). For his sin of selling his knowledge of and influence over state bureaucracy to the highest bidder, Silver must now help Joe Schmoe in dealing with state bureaucrats, sharing in the frustration of the powerless in dealing with clerks who lack the authority to grant even the most reasonable variance from approved procedures.

I have a strange feeling that Mr. Silver's knowledge of the backdoor to various agencies that get around the low level people who apply policies as written to the high level people who can override those polices is going to be much less valuable these days. Some of his cronies have undoubtedly moved on to better and more lucrative pastures, and Mr. Silver's ability to use those backdoors was inherently tied to his own personal power which is now non-existent.

Posted by: tmm | Jul 23, 2018 5:07:54 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB