Returning to Bodnar, it's true that former Republican insider and lobbyist Jack Abramoff also wrote a book in which he quasi-reflected on his own criminal behavior in paying bribes. Abramoff's book, however, was designed to "make a buck," not demonstrate contrition. A truly worthwhile sentence may have been to require Abramoff, as a condition of his supervised release, to atone for his acts by writing a book from which he could not benefit financially. That is, of course, assuming that Abramoff's hypothetical book did not take Bodnar's approach -- "I'm writing a book, but I did nothing wrong!"
Unlike "special conditions" like drug tests or sex offender registration, it is difficult for courts or probation departments to monitor the written or oral offerings of supervised defendants to see if they are adhering to the dictates of a sentence by genuinely accepting responsibility in their public pronouncements. One approach, of course, would be for courts to adjourn final sentencing until after the assigned task were accomplished. If, for example, as a special condition, a defendant had to write and distribute 10 essays describing how his crimes victimized the government and its citizenry via a specially created website, it would be easy to ensure that all 10 essays were written and to verify that the defendant had complied with the sentence's goal of having the punishment fit the crime. Of course, no one would ever know for sure if the defendant's contrition were sincere. Still, it may provide a realistic start to employing punishments that cause defendants to search inside themselves. It will also serve as a warning to the "next guy," before it is too late, that the "next guy" never wants to have to look inside himself and see what the defendant has seen.
Punishment fitting the crime? It's true that we no longer live in an era of lex talionis -- "eye for an eye" -- justice. We no longer want a sentenced defendant's eye poked out, occasioned by his having poked out the victim's. When the punishment fits the crime nowadays, the result should promote greater vision and more clarity, not less. And this result will invariably benefit the offender, would-be offenders and a society that wants to ensure that the justice system on which it prides itself is really working.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He also teaches Professional Responsibility at Fordham Law School. The views expressed are his personal opinions.
