Sentencing rich white guys

Let’s say you have a big trader who passes along inside information with no expectation of receiving a damn thing. He just does it knowing it is wrong. Let’s also assume that the offender is a really good man whose life has been lived at an exemplary level. As the sentencing judge, do you want (do you need) to know why the offender did what he did? The answer to that question is more complex and much harder than you might imagine. At the end of this post, I will have a question, and I hope readers will provide an answer.

I am pleased to call to your attention a very interesting and important new article on this subject written by Todd Haugh, a former Supreme Court fellow and a law professor at Chicago-Kent. The title to the article is: Sentencing the Why of White Collar Crime.  The piece will appear in the Fordham Law Review, but for now you can find it here (on the Social Science Research Network for free).

The abstract reads like this:

“So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a modest sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is exceedingly clear that Judge Rakoff’s search for those motivations impacted the sentence imposed.

This search by judges sentencing white collar defendants — the search to understand the “why” motivating defendants’ actions — is what this article explores. When judges inquire into defendants’ motivations, they necessarily delve into the psychological justifications defendants employ to free themselves from the social norms they previously followed, thereby allowing themselves to engage in criminality. These “techniques of neutralization” are precursors to white collar crime, and they impact courts’ sentencing decisions. Yet the role of neutralizations in sentencing has been largely unexamined. This article rectifies that absence by drawing on established criminological theory and applying it to three recent high-profile white collar cases. Ultimately, this article concludes that judges’ search for the “why” of white collar crime, which occurs primarily through the exploration of offender neutralizations, is legally and normatively justified. While there are potential drawbacks to judges conducting these inquiries, they are outweighed by the benefits of increased individualized sentencing and opportunities to disrupt the mechanisms that make white collar crime possible.

Now my question: Isn’t a judge’s search for an explanation of why rich white guys commit financial crime as a reason for mitigating harsh sentences a terrible idea if only because as a normative matter rich white guys deserve no further breaks in life?

RGK

34 responses

  1. A few thoughts:

    First, does the search for an “explanation” for criminal activity always lead to a lesser sentence? Presumably a judge who believes that a defendant who committed a white collar crime because he enjoyed the feeling of power it gave him, or even “because we were bored” would impose a greater, not lesser, sentence.

    Second, isn’t the context for any criminal activity usually a part of a judge’s sentencing decision? That is, doesn’t the man who steals food to feed his destitute family generally get a lesser sentence than the man who joy-rides his neighbor’s car for kicks? What about the man who commits a crime in the hope that he will be sentenced to prison and get health care ? If context matters in criminal sentencing, then I don’t see a principled reason why the particular charge or the race of the defendant would change that.

    Finally, it is certainly reasonable to note that “rich white guys” typically enjoy greater privilege than most in the United States, and the nature of your hypothetical white collar crime suggests that this particular rich white guy has enjoyed those benefits. But I don’t know that reduced sentencing is really a “break” for the guy in the same sense that his cultural windfall is.

    Thanks for the thought-provoking post. I look forward to reading more of your thoughts on the subject.

  2. I think this is a deeply rooted cultural / psychological problem. Namely, that it’s hard for people to swallow that someone from their “in group” could breach such a strong social rule. The search for justification then tends to be an exercise in self preservation; understanding why the offender did it allows people to distinguish themselves from the offender.

    I think it would be very interesting to look at white collar sentencing in jury-sentencing states, but I’ll leave that to people like Doug Berman.

  3. I don’t see how such an inquiry would ever be other than helpful and essential, not just in white collar but in all crimes. Information bearing on propensity to repeat or not repeat is a vital part of sentencing. I think confining the inquiry to rich white guys is wrong. Why should one group have the benefit of a judges greater understanding (and CONCERN about why they did something) than someone else? Dean Nasser

  4. i suppose the more enlightened/PC answer is that “rich white guys” deserve no worse and no better treatment than anybody else. therefore, if a judge is going to search for an explanation as to why a “rich white guy” committed a particular crime as a means to justify a less harsh sentence, the judge should do so for every criminal defendant.

    MY answer, however, is that society should hold to a higher standard (and punish more harshly) those who have attained positions of trust and/or authority and who (generally speaking) secure, consume, and hoard the lion’s share of society’s wealth, power, and resources. thus, if i were a judge i would almost certainly sentence such people far, FAR, more harshly than appears to presently occur. my thinking, i suppose, is something akin to the old saying that “to those whom much is given, much is expected.”

    and, in case anybody is wondering, i am a not-rich-but-doing-pretty-well white male who works in a position of trust.

  5. So your position is people who have achieved much, contributed to society, worked hard, and so on, should get punished more harshly for the same crime than bums whose lives have been a drain on society up until the point they commit the crime. Pardon me if I’m not persuaded.

    And either you don’t understand the context of the Bible verse quoted, or you’ve chosen to divorce it from its context and rely solely on its language. Either way, you’re in error. The verse is referring to a master-servant (employer-employee) relationship. And it is is the master who has done the giving and will be doing the expecting, and the expectations are tied to the work, not to abstract morality. All this reference sums up is the idea that if I’m paying you a lot, I’m expecting a lot. You act like the master does the giving and the government does the expecting, and expects not just good work but abstract morality. That is horrifying. Or perhaps you don’t mean it to be scrutinized—you’re just saying the words themselves, without context, offer a pithy summary of your views. But then, who is giving who anything? The idea that successful people are given it while unsuccessful people are not given it (and this is all that separates them) is the root much trouble.

  6. I would argue that the real problem is the fact we live in a society in which (generally speaking) those with the greatest wealth and influence are MUCH more likely to avoid the level of prosecution and/or punishment that is imposed upon the less wealthy and influential.

    and to answer your question, yes, I generally believe that (to use your words) “people who have achieved much, contributed to society, worked hard, and so on, should get punished more harshly for the same crime than bums whose lives have been a drain on society up until the point they commit the crime.”

  7. i realize that i might want to explain why i hold what i am sure is a viewpoint shared by very few people. in one paragraph or less, here goes….

    you seem to sympathize in this particular context with the criminal who has “achieved much, contributed to society, [and] worked hard.” while a person should not be punished for such things, in this particular context, i view it a bit differently. while i do not dispute the correlation between hard work and success, it likewise cannot (in my opinion) be disputed that those who have attained the most success have also benefited the most from what i will call (for lack of a better phrase) “positive societal inputs” (e.g. public resources that support/facilitate (either through direct action or indirect action such as tax policies) better housing, infrastructure, public education, availability to health care, police protection, etc). in my opinion, when those who have received the most from society violate society’s rules, such people should receive the harshest punishment because (all other things being equal) they have committed the greater crime.

  8. NOOB,

    Surely, your point is a reasonable one; that is, “when those who have received the most from society violate society’s rules, such people should receive the harshest punishment because (all other things being equal) they have committed the greater crime.” But it would be equally valid as a normative matter to say that all people should be sentenced in proportion to the harm the specific crime caused society rather than on considerations related to the offender’s status in society.

    All the best.

    RGK

  9. Judge,

    I was reminded of your question as I read this Huffington Post piece about the sentences of soldiers who divulged classified information. Though Manning was given a longer sentence than the others listed in the article, the other soldiers were often working for our enemies, divulging operational details that may have resulted in the deaths of American agents, and doing so for financial gain.

    Based upon media coverage of Manning’s trial, it would seem that there is little evidence to contradict the defense story that he was motivated by conscience. Others who gave up classified information (including the identities of American operatives) for lucre faced lesser punishment. It would seem that at least in military courts, the scope of the disclosure, not the objective harm or the motivation for disclosure, trumps all. This seems to me to be roughly in line with your observation that “people should be sentenced in proportion to the harm the specific crime caused society,” though I have not investigated the specific harm caused by Manning’s disclosures.

  10. Adam,

    Please don’t denigrate document review in my presence ever again. Damn it, how in the living hell could the legal biz get on without being able to bill tons and tons of money for reviewing tons and tons of documents thus enabling us to tell the client (with a happy face) “nothing there.” The meter is ticking–get back to the documents and quit reading my damn blog.

    All the best.

    RGK

    PS My trip has been enjoyable, but, then again, compared to document review . . . .

  11. Noob,

    What good is done by punishing good guys more harshly than bums even if the good guys are rich and the bums are poor?

    All the best.

    RGK

  12. Noah,

    Fascinating point. Very Freud (in a good way). I agree with you about Doug Berman and his expertise. Whether it is Doug or someone else, such as Professor Todd Haugh, the author of the stimulating paper discussed in the post, it would be enlightening to collect and examine empirical data on jury sentencing of white collar criminals as compared to judicial sentencing of white collar criminals.

    Thanks very much for taking the time to comment. All the best.

    RGK

  13. Strunkl beat me to most of my comment–what I get for sleeping in one day. I’ll just add these two remarks, then: it seems to me that understanding the criminal’s motive, beyond what’s necessary to establish criminal intent during the trial phase, is solely (and enormously) important during sentencing.

    Secondly, I take issue with two underlying premises in your question. Either we’re all entitled to equal justice under law, as the Supreme Court building, among other “documents” proclaim, or we are not. There is no middle ground. Further, the just-convicted criminal does not, of necessity, deserve no further breaks in life (or perhaps I’m misunderstanding that, and you intended it to go along with the rich white guys who commit financial crime.

    To answer a “rephrased” question, no it’s not a terrible idea. The search into motive goes along with my favoring judges sentencing outside the Guidelines–even outside the box–when the judge, not anyone else, thinks appropriate. And that surely will lead to some getting harsher sentences and some getting lesser.

    Eric Hines

  14. It’s a terrible idea, but not for the reason you state. And if the search for an explanation is motivated by a desire to mitigate a harsh sentence, that’s even worse. The problem is that the judge–more than likely to be a (relatively) rich white guy himself–is being selectively empathetic toward someone who he can to an extent identify with, but someone who, in my view, deserves to be treated more harshly, not less, than the usual non-white guy who commits, say, a drug crime. I would, on the other hand, think the search for an explanation were a good idea if it extended to that usual non-white guy as a matter of course.

    Isn’t London great? Glad you are keeping your readers posted.

  15. I don’t know if it’s a terrible idea because rich white guys don’t deserve a break, but it IS a terrible idea because it treats defendants differently based on the crimes they commit. No judge has every been interested in why my client got involved in drugs, sexual assault, murder, or kiddie porn. They’ve never been interested in their backgrounds, early trauma, parental absence or abuse and neglect. So why should it matter why a rich white guy stole a bunch of money?

  16. Judge,

    in one of your previous comments you stated that it would be appropriate to sentence criminals “in proportion to the harm the specific crime caused society.” i tend to agree with that sentiment and believe that if two people have committed the same crime the criminal who has “received the most from society” (to use my phrase) has generally inflicted the greater harm on society.

    we presently have a system in which (generally speaking) the correlation between wealth, influence, and/or status is inversely related to the likelihood of prosecution/level of punishment for similarly situated criminal activity. as the former increases, the latter decreases. i’m certainly no expert, but i think you could argue that this particular model suffers from serious shortcomings given that the US (at least according to one article i recently read) incarcerates a greater percentage of its population than any other industrialized country. when the wealthier and more influential receive preferential treatment (in terms of charging and/or sentencing decisions), the societal effect of such is quite damaging in my opinion.

    is it any wonder that so many people have so little regard for authority and the rule of law? why should they when they perceive that the game is so often rigged in favor of the wealthy and influential? rather than instilling respect for authority and the rule of law, such only teaches people that authority and legal rules, rather than being tools for facilitating an ordered and safe society, are merely tools by which the wealthy and influential maintain their wealth and influence.

    i realize that this is an incredibly complex and complicated topic, about which i know very little. i also understand that we’re talking in generalities that may or may not be appropriate in any particular circumstance. i simply offer my opinions to hopefully generate discussion and input from people much smarter than myself. nevertheless, i have lived on this earth for a fair stretch and have seen and experienced first hand that our criminal justice system is fundamentally flawed. while the solutions that should be implemented are many, a good place to start (in my opinion) would be to recognize the societal harm inflicted when those who have “received the most from society” violate society’s law and punish such people accordingly.

  17. Susan,

    If it is true that “[n]o judge has every been interested in why my client got involved in drugs, sexual assault, murder, or kiddie porn,” then I have two reactions: (1) you must want to put a gun in your mouth every time you appear at sentencing; and (2) if there is a God, I ask him, her or it to remind me of your e-mail every time I sentence someone because I desperately want to be a different type of judge than the ones of your experience. Thanks indeed for your comment.

    All the best.

    RGK

  18. Richard,

    Excellent point to make to an old white guy who is, unfortunately, not rich but feels himself well off.

    And, thanks, London is amazing in many unexpected ways.

    All the best.

    RGK

  19. NOOB,

    Thanks for your engagement. I doubt you will find smarter people than yourself on this blog.

    Anyway, this is what Congress tell us to do when sentencing:

    The court, in determining the particular sentence to be imposed, shall consider—

    (1) the nature and circumstances of the offense and the history and characteristics of the defendant;
    (2) the need for the sentence imposed—
    (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
    (B) to afford adequate deterrence to criminal conduct;
    (C) to protect the public from further crimes of the defendant; and
    (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
    (3) the kinds of sentences available;
    (4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines.

    Given the patent and latent ambiguities of the foregoing directives, is it any wonder that we have difficulty answering sentencing questions? I would be interested in knowing how you would articulate the goals of sentencing.

    All the best.

    RGK

  20. If, in fact, this question is more rigorously pursued for a white collar criminal than the run of the mill thug, then I fear that the inquiry itself exposes a class bias. We inquire as to why the defendant committed the crime, because we insist that there must be a reason.

    The fundamental reason that all crime occurs is because the convict is a “bad person.” By “bad person” I mean that for every convict, there has almost certainly been another, similarly situated person who obeyed the law. Presuming, for sake of argument, that the law is good then the person who obeyed the law is “better” (at least on that day) than the person who disobeyed the law. Unless the convict convinces me that his circumstance is truly unique, and this is a hard argument, then the only cause of crime is the convict’s lack of virtue.

    If a post-teenage drug dealer’s stray bullet kills a child, we have no problem jumping right to the convict’s lack of virtue as a cause of the crime.

    But when the convict looks and sounds like me, I am forced, painfully, to admit that that same evil exists in people who look and sound like me. The insistence that there must be “a reason,” betrays a bias — I am unwilling to ascribe the same evil nature to someone like me than someone different than me. My desire to not be like something evil forces me into a search for mitigation.

    A first rule of science is it requires precious little evidence to convince me of something I desperately want to be true. Thus, I will find the mitigation — whether it is there or not!

  21. John,

    I have copied a similar comment and my response that appears in another part of this blog because the person commenting had trouble with the stupid way comments are configured. Anyway, great minds think alike:

    georgecotz says:

    August 22, 2013 at 3:55 pm

    I couldn’t figure out how to comment at the foot of your post.

    Regarding the Rich White Guy question: Let me say first that I am a civil trial lawyer, who does ocassional criminal trials. I would hope that every judge, in imposing every sentence, stops to ask “why did he/she do it”? and not just when sentencing Rich White Guys. Let’s skip whether Raj is “White” he is certainly Rich. My own answer, with all due respect to Judge Rakoff, who I have had the honor of appearing before, is that they are rationalizing the gut instinct to cut some slack for someone they recognize as one of their own.


    RGK says:

    August 22, 2013 at 4:59 pm

    George,

    Thanks for your comment. Yes, let’s certainly set aside my idiotic reference to Raj as a white guy. Funny though in a sort of eccentric off-hand way.

    I also agree that sentencing folks of your own tribe really gets at the heart of the matter. To be perfectly honest, I often ask myself whether I am capable of doing what the offender in front of me did. The answer is almost always “yes” when the offender in front of me looks like me, speaks like me, arose from a similar background as me, etc., etc. Not so much when the offender seems “exotic.” Ain’t legal realism fucking scary.

    All the best.

    RGK

  22. Strunk, my friend,

    Your reference to Manning is fascinating and right on point. If the harm is great, but the heart is pure, should we care about motivation? As some of my comments earlier suggest, I am frustrated as hell by the statutory goals of sentencing. Those goals include the kitchen sink. A judge can read those goals to enforce his or her own sense of morality, etc., etc., etc. Can that be a good thing? Shouldn’t we have a huge big debate about what we really want to accomplish at sentencing, and then clearly state the goal such that we are able to hold judges accountable?

    All the best.

    RGK

  23. Judge,

    it is difficult to respond to your question in a brief and concise manner. some folks study and write about this topic their entire career and never “figure it out.” thus, i doubt i have anything particularly insightful to add in a handful of paragraphs, but let me try to briefly articulate some of the thoughts running through my head at the moment. it will undoubtedly become clear that my thoughts largely concern a sizeable (in my opinion) portion of criminal offenders. i certainly recognize that my “ideas” or opinions have limited (or no) application to certain offenders and/or aspects of the criminal justice system, but just as Rome was not built in a day, i cannot solve what ails the CJ system in a single post 🙂

    the factors that Congress has articulated for you to consider when imposing sentence do not seem inappropriate. i discern, however, a significant disconnect between the factors that you are instructed to consider and the means or methods by which you can give “full effect to” such. in my mind, our criminal justice system suffers from a complete lack of creativity. judges are given the task of sentencing people (who come from incredibly diverse circumstances and whose needs and “level of development” are as varied as the snowflakes that fall from the sky) who have committed crimes ranging from the most benign to the most heinous. despite this incredible diversity in facts and circumstances, we expect judges to sentence people (and effectively serve society and its many wants and needs) almost exclusively through the use of three tools: (1) incarceration; (2) some form of probation or supervised release; or (3) nothing.

    why must judges be so limited when dealing with individuals who violate society’s rules? don’t misunderstand. i am strongly in favor of very harsh and lengthy incarceration for either (1) the commission of certain crimes (e.g., rape, murder, and crimes of violence) or (2) for those who are unwilling or unable to conform their behavior to society’s norms. probation or supervised release, likewise, may be the most appropriate method of dealing with a particular offender. i am not arguing that such tools should be removed from the judge’s toolbox, but instead that many, many more tools and options should be made available to judges.

    incarceration (for those capable and desirous of appropriately modifying their behavior) is unlikely to be very effective in helping/teaching the offender to appropriately modify his behavior and, in fact, incarceration (especially if for a significant length of time) may very well make it MORE likely that the person will later re-offend. probation or supervised release, while perhaps avoiding the worst aspects of incarceration, may be equally ineffective if it is implemented by doing nothing more than placing the offender back into his previous environment without significant levels of socially appropriate support. again, these “punishments” may be perfectly appropriate in many (or even most) circumstances and where appropriate should be employed.

    excepting those who will be incarcerated for VERY lengthy periods of time (either because of the nature of their crime or because they are unwilling/unable of modifying their behavior) and those who will be sentenced to life or executed, the remaining offenders, regardless of the method of punishment imposed will, at some point, “rejoin society.” it would seem to me that it serves society’s long term interests (as well as the interests of the offender) to make an honest and effective attempt to put the offender in a circumstance in which he or she can learn the “skills” (very largely defined) to give them the opportunity to not re-offend. you can call this rehabilitation if you like, but i would argue that rehabilitation as presently attempted in our CJ system is ineffectual – not because it cannot work but because we make what on a good day doesn’t even approach a half-assed attempt at real rehabilitation.

    this, again, is a complicated matter about which one smarter than me could write for years, but i think i can summarize the principle underlying my opinions on this topic as (as somebody else first wrote), “it is easier to act yourself into a new way of thinking than to think yourself into a new way of acting.” instead of incarcerating everybody (or putting them on do-nothing probation) and hoping they will “think themselves into a new way of acting” (i.e., not later re-offend) why not invest some real resources and energy into compelling certain offenders “to act themselves (hopefully) into a new way of thinking.” i am not, however, by any means advocating “soft” or “lenient” treatment, i am instead advocating “redemption,” if you will, through much sacrifice and VERY hard work. what i envision is tough love of the toughest kind.

    not to oversimplify matters, but if we can put a man on the moon we can surely think of some creative ways to accomplish the related goals of “punishment” and “rehabilitation.” i could give many examples of things that in my opinion should be tried or considered, but i have already rambled on more than enough. i realize that many will disagree with my ideas and opinions, not that such criticism is unwarranted either because i have failed to better articulate my thoughts or because my ideas are not just very good. but, to those of you that may dismiss out-of-hand the larger point that i am trying to make, i would simply ask, “just how well is our current criminal justice system working?” personally, i think our CJ system is an abysmal failure for many reasons. i look forward to reading others’ thoughts.

    finally, as i finished writing this, i thought of the sentences that Jesse Jackson, Jr. and his wife recently received (disclaimer – i did not follow that case and know almost nothing about it). As i understand it, they were both sentenced to prison (at least in Jesse, Jr.’s case for a period of time less than the sentencing guidelines recommended), but will be permitted to serve their prison terms separately (he serves his first after which his wife will serve hers). as i understand it, the judge imposed this type of sentence so that the couple’s young children would not be “orphaned” while their parents were in prison. while i believe that there are far more effective (i.e., creative) ways to punish the criminal behavior in question, this type of “compassionate sentence” (while not all that much “out-of-the-box”) nevertheless reflects the type of creativity that more judges need to employ (or perhaps more appropriately need to have the authority to employ). however, as i alluded to yesterday, there is no doubt in my mind that this type of sentence would NEVER be considered for the average citizen lacking the wealth and influence of these particular offenders. so, once again, a wealthy and influential offender receives preferential treatment that those lacking such wealth and influence would almost certainly never receive.

  24. I’ve had the great good fortune to work for the past 11 years as an assistant prosecutor in a large jurisdiction in a rust-belt state. In our courts, it doesn’t matter if the murderer hated his victim or if he killed the victim during a bungled robbery, the victim is still deceased. I think dramatic fluctuations in sentences based upon what a judge thinks motivated a defendant to commit the crime is a bad idea. Sentencing should be, as much as possible, a uniform process.

    We have sentencing guidelines that take into account such things as the defendant’s criminal history, the nature of the criminal act, the number of victims, whether a weapon was used, etc. This results in a sentencing range, and any sentence within that range is presumptively reasonable (valid). Beyond those enumerated factors, “why” the defendant killed the victim really isn’t a consideration. (Sometimes the defendant’s motives are taken into account at the beginning of the process, and can result in charging someone, for example, with manslaughter rather than murder.)

    I believe a victim-centric viewpoint animates the criminal justice system. Perhaps that’s why white collar cases are difficult. The victims are more abstract. I can’t imagine a judge delving into the “why” of a defendant who sexually assaulted his daughter, or burned his neighbor’s home to the ground, or shot and killed a stranger during a robbery, and giving the more “benignly motivated” actor a sentence below the guidelines.

    Bob Dylan (and probably someone before him) said: “If you can’t do the time, don’t do the crime.” Pithy, eh?

  25. Late to the discussion, but doesn’t this sort of inquiry parallel the prejudice that was attacked in Skinner v. Oklahoma? There, prior to the Supreme Court’s ruling, persistent theft would get you sterilized – unless it was called embezzlement.

    Perhaps the fascination and excuse comes from the (mis/pre)conception that thieves are generally strangers, compelled to steal and a hair trigger away from violence in support of their goals; whereas embezzlers are trusted people who have succumbed to temptation in a gentler, less predisposed to violence sort of way. Thus, an inquiry into the roots of white collar crime is an invitation to an Augustinian confession, exposing the weakness of the past in order to march (shriven) into the future. After all, good people trusted the embezzler – who trusted the thief?

  26. Mike D,

    Great, great insights. What nice writing too! (Love “exposing the weakness of the past to march (shriven) into the future.”)

    Thank you very much.

    All the best.

    RGK

  27. Micheal,

    Your point is a good one. If you concentrate on the harm caused (or as you put it, making the goal victim-centric sentencing), we probably cut down on sentencing disparity caused by sentencing judges who have different views about culpability.

    However, a problem arises when you have two offenses for which the harms are about the same, but the offenders are not. In that situation,the “why” of the crime allows a sentencing system to get at the notion that punishment must be “just.” For example, it would not seem “just” to give the same sentence to two bank robbers who robbed banks in the same way and stole the same amount of money from each bank if one robber did so to pay for the medical care of a sick child and the other robbed the bank to buy a diamond stud.

    I am particularly glad to hear from a prosecutor on this subject, whether from the rust belt or otherwise. There is a tendency for sentencing judges (me included) to see the damage to our society caused by the offender in abstract terms, when offenders appear before us live and living color while begging for our mercy.

    All the best.

    RGK

  28. Throughout my law school class in criminal law I was disturbed by the victim-centric view of justice. It always seemed to me that prosecutors who invoke the plight of the victim at a trial were trying to evoke emotional responses irrelevant to the question posed to the jury: did he/she commit the act?

    I think I find the offender-centric view just as objectionable. It only obfuscates the central questions of sentencing: what punishment is necessary for deterrence (both general and specific) and what measures are necessary to protect the public from future transgressions.

    Justice is often invoked as a feeling of satisfaction in the conviction or sentence. This standard is obviously highly subjective and therefore capable of being influenced by implicit biases. It also seems somewhat childish: once the crime has been committed, punishment of the offender for a feeling of satisfaction serves only a crude, short-sighted urge for revenge. Regardless, it’s hard to understand how one can feel satisfied with a system of “justice” that gives different punishments for the same crime.

    The criminal law should be aimed at preventing crimes and protecting the public. Justice requires even handed and consistent application of the criminal law and unbiased, society-centric sentencing.

  29. Nick,

    Good point. The problem, however, at the federal level is that the statutory goals of sentencing are far more expansive than specific and general deterrence. And, as I have noted before, the expansive nature of these statutory directives almost insures that sentences for essentially the same or similar conduct will be all over the lot. When the Supreme Court gutted the Guidelines regime in Booker and its progeny, this problem became even larger.

    All the best.

    RGK

  30. TF,

    First, I apologize for my late reply.

    Second, and to be clear, I intended no criticism of Judge Rakoff.

    Third, my reference to a “white guy”in the context of the particular defendant before Judge Rakoff (and as recounted in the law review article I was discussing) was perhaps mistaken but certainly misleading. For that, I apologize.

    All the best.

    RGK

  31. No need for any apologies. It was not a serious comment. I just thought that it would be amusing – that the very first example in a post titled “rich white guys” is actually Indian.

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