Professor Ribstein — who is the blogosphere’s foremost commentator on the troubling trend in the government’s criminalization of business — points us to this interesting this New York Times Magazine article in which novelist Mark Costello (most recently ”Big If”) and formerly a prosecutor for nine years addresses the problems involved in attempting to punish all types of crime in a uniform manner. In particular, Mr. Costello notes the sad case of Jamie Olis:
Dynegy’s slogan was ”We believe in people.” Many people working there idolized Chuck Watson and his downright dynegistic saga. One fellow in particular, a pudgy middle manager, had an especially inspiring biography. Born in Korea to a Korean mother and a G.I. father who abandoned the family, the young man came to Texas as a child. He lived in a shack in the wash of an often-flooded gully. At school, the other children beat him and made fun of him. But the lad was bright and resolute, and this is America, where every dream is possible. He went to college on full scholarship. He became a lawyer and a C.P.A. He married, had a child, and at the age of 36 enjoyed the corporate plumage of a throat-clearing title: senior director, Tax Planning and International.
His name is Jamie Olis. Two months ago, he was sentenced to 292 months (let’s call it 25 years), one of the longest prison terms for fraud conspiracy in U.S. history.
Mr. Costello then decries the attempt to take prosecutorial and judicial discretion out of the sentencing process in criminal cases:
If an arraignment is one place to see the truth about a prosecution, a second place would be the other end of the great and ceremonial intestine of the courts — namely, sentencing. Sentencing is where the state can make a statement. We like to think the statement is about right and wrong, the certain bedrock of our values. This would be resonant and satisfying, a good end to the movie. But sentencing, in fact and practice, is a thing of fault lines, feeling versus theory, science against sympathy. We don’t often get what we want from the drama of a sentencing, because we don’t always know what it is that we want. More pain in punishment, like the record whack received by Jamie Olis, and those who’ll follow Olis, will only put more pressure on these fault lines.
Mr. Costello closes with the salient thought that sentencing in criminal cases — as with most issues in life — is not usually black and white:
But in truth, sentencing is more often about wrong and wrong, relative crimes and comparative punishments, the sins of Jamie Olis (who got 25 years) versus those of his co-workers (who could get 5 years), the sins of Mr. Embezzler versus those of the kids from Newark. Everyone is equal and should be treated equally, yet everyone’s unique, or so we think.
As Dickens once said, ’tis a muddle. As we prepare to ratchet up the ”war” on corporate fraud with new shock-and-awe-type sentences, perhaps we should pause, or go slowly at least. Perhaps we should respect the muddle, the humane confusion underneath the act of punishing all criminals — the violent and nonviolent alike. Nine years as a prosecutor taught me this: when we use force (here, a jail cell) without the calm of a theory, the result is rarely something we are proud of.
Professor Ribstein has more thoughts here on the inhumanity of the federal guidelines that constrict federal judges’ discretion in sentencing matters.