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The impending sentencing of Wesley Snipes on his misdemeanor tax convictions nicely frames an interesting question about celebrity and sentencing.
In celebration of Tax Day, the government filed its sentencing memo today, urging (not surprisingly) that the judge send Snipes to jail for the full three years he's facing. There are plenty of reasons a sentence like that makes sense—his acquittal on the felony charges seems a matter of anti-tax sentiment, potentially allowing a judge to sentence him for acquitted conduct, and, of course, the sums in question clearly merit a substantial sentence—but let's put those aside for now.
Instead, I'd love to hear from my fellow bloggers about these two bits from the sentencing memo:
"In the defendant Wesley Snipes, the court is presented with a wealthy, famous, and inveterate tax scofflaw"
and
"The multifarious nature of his schemes and the deterrence value of a substantial prison sentence for this truly notorious offender call for a full 36 months in prison."
Basically, what the government is arguing here is that Snipes needs to be hammered for his celebrity. The clear suggestion is that because he's a high-profile defendant, sending him to prison for a long period of time is like a deterrent bonanza. The thing that strikes me, though, is that unlike political trials, or those of thieving cops who abuse a position of trust, Snipes is an actor who never took an oath to serve, protect, or do much of anything else other than look out for No. 1. So here, unlike those other high-profile or political cases that involve an abuse of trust or authority, we really are talking about a sentencing enhancement purely on the basis of notoriety.
Having been a public defender for more than a decade, I'm not so naive as to think that high-profile defendants don't get hammered all the time just because they have the misfortune of having their crimes make the paper, but I haven't often seen quite such a direct and unabashed plea for a harsher sentence grounded in this particular reasoning.
So, should celebrities get hammered for having chosen to live such a public life? Is this an argument we think the court will actually countenance? Any guesses as to what happens on the 24th?
I'll go on record as saying Snipes is going in, and going in for a while. Probably north of a year and very possibly for the statutory maximum.
Guesses anyone?
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Michael Brick’s ambitious piece in today’s New York Times about the wide ranging narcotics prosecutions in the housing projects of Brooklyn omitted some important details which suggest that the “historic conspiracy” referred to in the Brooklyn District Attorney’s press releases was not the series of drug transactions being prosecuted under the false flag of an overused conspiracy law, but rather one between Mr. Hynes’s office and a compromised judiciary conscripted in the service of unsustainable prosecutions by fawning press coverage and a lack of simple courage.
While Mr. Brick does imply (by quoting defense lawyers) that the use of first degree conspiracy charges had the effect of “exacting jail terms they might not otherwise have won,” he does a shoddy job of explaining just how the use of bail coerced plea bargains, and entirely omits the fact that bail is a matter of judicial discretion, thus failing to pose the question of why judges continued to set and maintain bail as case after case collapsed.
The omissions reflect Mr. Brick’s thesis that the cases “stumbled at the courthouse steps.” That thesis posits that the system actually works with judges fulfilling their proscribed role as checks on prosecutorial power. In fact, judges were complicit in the continuing prosecution of the cases at each step from arraignment onward.
Mr. Brick correctly noted that those charged with Conspiracy in the First Degree (Penal Law Section 105.17) had bail set at astronomical numbers. Certainly (though he didn’t mention it) this is in part because 105.17 is a class A-1 felony, punishable by life in prison and subject to the same penalties as a murder. Still, there is no statute that requires judges to set high bail, or even, bail at all. In fact, releasing defendants charged even with serious crimes is the prerogative of any presiding arraignment judge, and one of the main things those judges are required by law to consider is “the weight of the evidence against (the defendant) in the pending criminal action and any other factor indicating probability or improbability of conviction.” When juries soundly reject conspiracy charges in case after case, and when the district attorney’s office resolutely refuses to even explain the basis for such serious charges citing secrecy, it becomes incumbent upon judges to refuse to set bail and to begin to release defendants charged in the same manner.
What happened in Brooklyn, though, is precisely the opposite. For years and years, despite the District Attorney’s office’s utter failure to secure even a single conviction on Conspiracy 1 charges, judges continued to set and maintain high bail knowing full well that it would take a year or more for cases to come to trial, and that when they finally did, almost no defendant in their right minds would refuse a “time-served” or get out of jail today plea offer. In short, judges were the silent partners in an Alice-in-Wonderland-like sentence—first verdict, afterward regime. Had they done their jobs and refused to set bail based on unsustainable charges, prosecutors would quickly have tired of the legal charade they have used for years to railroad potentially innocent people into pleading guilty to unprovable cases founded on questionable and sometimes virtually nonexistent evidence.
Letting the judiciary off the hook for their complicity does a disservice to readers and perpetuates the myth of a well-functioning system of criminal justice. In fact, as even the most cursory look reveals, co-opted judges, all to eager to appear tough on crime and unwilling to exhibit the courage necessary to take an unpopular stand, have long ago become prosecutorial partners in the tragic dismantlement of the constitutional safeguards we all rely on to protect us from an increasingly overreaching government.
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In the layman's view of the criminal-justice system, defendants go to trial, are convicted or acquitted of certain charges, and if convicted, are sentenced for the offenses. But try to explain the reality of being sentenced for acquitted conduct, and you're likely to be met with stares of astonishment. "You mean you can go to trial, get acquitted and still go to the slammer for stuff the jury says wasn't proven?"
Indeed, my friends, welcome to our world.
Not only have many defendants been sentenced for stuff the jury said they didn't do (or at least wasn't proven), but yesterday the Supreme Court refused to do anything about it. The cert denial came in the case of Mark Hurn of my hometown, Madison, Wis. Hurn ate 15 years extra years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. It's true. Though he was convicted of having powder cocaine in his house, (for which he was looking at two or three years in prison), he was sentenced to almost 18 years. Why? Because even though the jury acquitted him of the crack charge, the judge kind of figured he'd done it and therefore found, by a preponderance of the evidence that he'd done it, and sent him to prison as if the jury had actually said "Guilty" rather than "Not Guilty."
Strange? Yes. But sadly, also true.
And while the high court's refusal to hear Hurn's appeal (notwithstanding reverse his sentence) yesterday was cowardly enough, with the fourth circuit's decision this afternoon in US v. Ibanga, we have finally landed in Wonderland. In the case (and no it's not a joke though I wish it were), the fourth circuit basically says that not only CAN you sentence on acquitted conduct, categorically refusing to consider it is actually error.
What does that mean? It means that if you go to trial and blow, on even a single count, you run the risk of getting slammed for the entire indictment. Not only do ties go to the government, if they even score a run, they win. Anything other than a shut out is a loss for the defense. And that, in turn, makes it virtually impossible to win, but worse, it means that going to trial with a "I did this but not that" defense gets you only a pyrrhic victory. No longer can you reasonably contest a part of the government's case against you at a trial. Well, let me amend that, you can contest it, but it's unlikely to make a difference in how long you go to prison for even if you win.
Your only option? Total victory or plea.
So I'm dying to know, dear fellow bloggers, is there anyone out there who does not find this morally, procedurally or legally appalling? Don't we think Booker or Blakely at least suggest that this kind of thing really ain't so kosher? Anyone want to give me the odds that the court eventually turns around and does away with this abomination?
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Columbia business professor Ray Fisman has a fascinating column in Slate on the economics of California's "three strikes" law -- a subject near to my heart because I wrote my undergraduate thesis on it. Researchers at RAND have done some work on the costs, benefits and efficacy of the law, but Fisman writes that a new study by the National Bureau of Economic Research contains some disturbing findings:
. . . [The study] finds that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do continue in a life of crime to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons with a pair of strikes against them have little to lose (and often much to gain) by committing serious crimes rather than minor offenses.
Why would stiffer penalties increase violent crime? To understand this seeming paradox, you first need to understand the nature of California's three-strikes law. Not just any offense gets you a first strike. It must be a so-called "record-aggravating" offense, which includes violent crimes like assault and rape as well as serious nonviolent crimes such as burglary or drug sales to minors. But after strike one, strikes two and three can come from any felony, including minor offenses like possession of marijuana or even stealing golf clubs or videotapes. A third strike carries with it a mandatory sentence of at least 25 years in prison.
Now, put yourself in the shoes of a two-strike criminal. The prospect of 25 years behind bars for a third offense is likely to give even a hardened criminal pause before he or she crosses the street against the lights. So we'd expect two-strike felons to commit fewer crimes. But suppose you've already decided to break the law—maybe you need to make a quick buck. Are you going to lift a few golf clubs from the local pro shop? Or are you going to hold up a bank? The potential haul from a bank robbery is obviously much greater, and the penalty is the same: Bank robbery will get you decades in the slammer, but if it's your third offense, so will shoplifting.
Even if you don't quite have the chutzpah to pull off a bank job, you still might end up committing a more violent crime if you're in a 0-2 hole. Let's say you opt for the golf club caper, but as you're making your getaway, you're cornered by a store security guard. Do you surrender quietly or pull out a gun? If strike three is looming, it's all the same to you whether you end up on trial for shoplifting or armed assault, so why not try to shoot your way out of an arrest?
The Supreme Court upheld California's three strikes law a few years ago. And in the aggregate, the law has helped reduce crime by putting away a lot of criminals (albeit at staggering cost for the state of California). But I don't think that's the end of the discussion. It's one thing to ask whether a law is Constitutional; it's quite another to ask whether the law is effective, or a prudent public policy. I'm curious about what my Convictions colleagues think. Do sentencing laws like "three strikes" work? Or are there better, cheaper, more effective alternatives? And if the law's unintended consequence has been to make 2nd strike criminals more violent, what can we do about it?
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