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October 8, 2019

US Attorney in college admission scandal makes plain how trial penalty works even for celebrity actresses

In various settings, we often hear expression of concern that celebrity criminal defendants may receive a different form of justice than us regular folk.  But this recent article reporting comments by the US Attorney in charge of the college admission prosecutions, headlined "Lori Loughlin faces 'substantially higher' prison sentence than Felicity Huffman if convicted, U.S. attorney confirms," provides a useful and usefully candid reminder that celebrity defendants are subject to being penalized for exercising their trial rights just like all other defendants. Here are excerpts from the piece (with two sentences emphasized):

Andrew Lelling, whose office is prosecuting the Operation Varsity Blues case, gave a rare interview over the weekend praising "classy" Felicity Huffman ahead of prison. He also confirmed that Lori Loughlin faces a "substantially higher" amount of time behind bars if convicted.

The Boston prosecutor, who was appointed U.S. attorney by President Trump in 2017, was asked why he proposed a prison sentence of only one-month for Huffman, who pleaded guilty to one charge of fraud conspiracy. During an interview with On the Record on WCVB Channel 5, Lelling called Huffman "probably the least culpable of the defendants who we've charged in that case."

"One of the things we looked at was money involved. She spent about $15,000 to have her daughter get a fake SAT score," he explained. "She took responsibility almost immediately.  She was contrite, did not try to minimize her conduct. I think she handled it in a very classy way and so, at the end of the day, we thought the one-month was proportional."

Ultimately, Huffman was sentenced to 14 days in prison, 250 hours of community service and a fine of $30,000. "I think the two weeks she actually got was also reasonable, we were happy with that," Lelling said. "I think it was a thoughtful sentence."

Lelling said a person receiving a lesser sentence after pleading guilty is "almost always" the outcome. "If people take responsibility for their conduct and they take responsibility for their conduct early on, then it will probably go better for them," he shared.  "What I value in the Felicity Huffman sentence is that I think it sent a clear message to the other parents involved that there really is a good chance that if you're convicted of the offense, you are going to go to prison for some period of time because the least culpable defendant who took responsibility right away, even she got prison."

Lelling was asked specifically about Lori Loughlin and her husband, Mossimo Giannulli, who are accused of paying around $500,000 to get their daughters into USC as crew recruits, even though neither rowed. He confirmed what legal experts speculated to Yahoo Entertainment last month — that Loughlin will spend more time in prison than Huffman if convicted.

"If she's convicted... we would probably ask for a higher sentence for her than we did for Felicity Huffman," Lelling said. "I can't tell you exactly what that would be. The longer the case goes, let's say she goes through to trial, if it is after trial, certainly, we would ask for something substantially higher. If she resolved it before trial, something lower than that."

Loughlin and Giannulli are some of the parents implicated in the college admissions scandal that are fighting the charges against them. They pleaded not guilty to two charges: conspiracy to commit money laundering; and conspiracy to commit mail and wire fraud and honest services mail and wire fraud.  They were hit with an additional charge when they didn't agree to a plea deal....

Loughlin, Giannulli and the other parents fighting federal charges are due back in court in January.

I do not want to unduly bash US Attorney Lelling for his candor here, especially because I think he merits praise for a lot of his work in these cases (and especially for only seeking a month in prison for Felicity Huffman).  Moreover, he does a reasonable job giving a reasonable spin to the best arguments for a "plea discount" at sentencing when he talks of the importance of being contrite and of the sentencing value of having defendants "take responsibility for their conduct early on." 

But I find it grating when US Attorney Lelling says his office will see a "substantially higher" sentence the "longer the case goes" for Lori Loughlin; it suggests that more is at work here than just rewarding remorse for those who are contrite.  Of course, to those familiar with the day-to-day realities of the criminal justice system, there is no surprise to seeing that potential exercise trial rights coming with a potentially significant sentencing price.  In the end, US Attorney Lelling is just being candid and honest about how the system really works for both celebrity and non-celebrity defendants.  But the fact that the trial penalty is so common and impacts more than just commoners still does not make it any less distasteful.

October 8, 2019 at 06:22 PM | Permalink


"Lelling says his office will see a "substantially higher" sentence the "longer the case goes" "

The bill of rights doesn't say people can't be punished for exercising their rights, see Elrod v. Burns (1976). Exercising a right often requires the harshest and most brutal forms of injustice by the government to offset the inhumanity and humiliation the society endures when people act as autonomous individuals with god-given dignity, see the eighth amendment and Furman v. Georgia (1972).

Posted by: Brennan Marshall | Oct 8, 2019 9:47:13 PM

Isn't forcing a judge to preside over a trial no different than forcing a woman to give birth?

Doesn't going to trial violate a judge's right not to work?

Posted by: Harvey Dent | Oct 8, 2019 10:05:00 PM

I think he could have stated or should have stated that while defendant's are not penalized for exercising their right to trial - they will not likely receive an acceptance of responsibility reduction - either -2 for pleading guilty and possibly another -1 for pleading guilty in a timely manner if their total offense level is greater than 16. But that is certainly not common knowledge nor easy to explain in layman's terms. Certainly, when someone pleads guilty, often it may be to only 1 or 2 counts - thus reducing the stat max and in Lori's case she was also charged with money laundering - that's a game changer possibly when it come to her guideline calculations should she plead guilty or is found guilty of that offense - it's no longer just mail and/or wire fraud. the 3553(a) factors will certainly come into play in all of these cases and it's refreshing to see some of those being discussed openly by all of the parties.

Posted by: atomicfrog | Oct 9, 2019 8:54:03 AM

The leverage and injustice of the "trial penalty" are well known. The trial penalty has long been condemned. In my own case in 1999, I was offered a 6 month plea deal, which I refused. Following conviction at trial on conspiracy counts, I received a sentence of 97 months, as a first time offender, who (according to the Judge) had up to that point led "an exemplary life") for 37 years. I had put myself thru a top 20 university and a top 10 law school, and had paid off my student loans 3 years early. If the prosecutors want you, they will find a way to do it.

Posted by: James Gormley | Oct 9, 2019 8:54:39 AM

Put it outside the criminal trial system, if you are a boss and an employee did something wrong, which of the three will you be more willing to consider a warning and additional training and which one are you more willing to fire: 1) the employee who immediately acknowledges that they made a mistake and wants to do better in the future; 2) the employee who initially does not see that they did anything wrong but, after you explain it to them, finally gets it; and 3) the employee who never admits that they did anything wrong and continues to contest (through whatever grievance procedure you have) your attempt to sanction them.

I think most prosecutors are willing to cut an offender in the first category a break (a plea bonus) because that offender seems to have the greatest possibility of not coming back as a recidivist. Particularly when the evidence seems overwhelming, it makes sense to recommend what you really think the offense is worth when the defendant gives no indication of remorse as that person seems (at least to the prosecutor) to be likely to reoffend in the future.

Posted by: tmm | Oct 9, 2019 10:56:51 AM

Shouldn't be a surprise that there's a trial penalty when the when federal bench is made up of prosecutors - former and current.

Posted by: whatever | Oct 9, 2019 11:02:25 AM

I'm sorry but calling it a "trial penalty" is already conceding the game.and I refuse to play. I believe post-trial sentences are much more in line with what most criminal conduct actually merits, it is just that societal resources could not possibly withstand the load and so plenty of offenders get an undeserved break.

Posted by: Soronel Haetir | Oct 9, 2019 5:58:53 PM

When prosecutors drop charges for a plea agreement shouldn't that indicate that the charges were not valid to begin with? Should prosecutors be held responsible for bringing these invalid charges?

Posted by: beth curtis | Oct 9, 2019 10:34:07 PM

If you make me do my job I'll make you pay.

Posted by: beth curtis | Oct 10, 2019 11:18:28 AM

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