Having the Punishment Fit the Crime

Joel Cohen

Was it Hammurabi in his Code, Cicero in the de Legibus, or W.S. Gilbert in The Mikado? Actually, it doesn't really matter who authored the phrase -- whoever it was, he was right: "The punishment should [indeed] fit the crime."

Typically, though, sentences imposed by American courts do not fit the crime because they are not idiosyncratically crafted to focus the wrongdoer -- or, for that matter, the public -- on the wrong committed. Whether designed for specific deterrence, general deterrence, retribution or a combination of the above, sentences usually follow a prototype: They mete out the ignominy of the conviction itself, usually coupled with jail time or probation, possibly a fine, and possibly restitution. If a defendant is jailed, serves a term of supervision or pays money, nothing except the length of the term and amount he must pay, if any, distinguishes him from offenders convicted of a totally different wrongdoing. Despite the inherent value in these punishments, there could be so much more to them.

Sentences of probation or post-incarceration probation (generally called "supervised release") can, indeed, take into account how the defendant earned society's wrath, or why the government felt the need to initiate his prosecution. Typically, however, they don't. A rare exception is the sex crime for which, in addition to traditional punishment, defendants are placed on watch lists.

This said, should a sentence for a convicted rapist require that he watch his own daughter be raped? Must an individual who sold adulterated drugs to the aged have to endure, as part of his sentence, the prescription of adulterated drugs to his own aging parents? Should a convicted robber be forced to suffer another man robbing him at gunpoint? Facially, these punishments would seem to "fit" those particular crimes. But of course they do not. We don't live under Hammurabi's Code, nor do we want society to impose barbaric punishments (with the death penalty an arguable exception).

Fortunately, the courts have at their disposal other imaginative mechanisms to accomplish a form of "rough justice" designed to give convicted defendants a civilized dose of their own medicine. If created, such punishments may address not only the defendants' actions but also the general public's expectations, assuring the greater community that the defendants have been forced to face the reality of their aberrant actions. Ideally, a sentence should hold a mirror up to a defendant so that the sentencing judge and society can determine that the defendant's demons have been exorcised, or at least that the process has begun. The appropriate sentence might also serve as a general deterrent, encouraging "the next guy" to pause before he strays down the same road.

Imaginative judges, even those who have occasionally faced appellate reversal based on their ingenuity, have crafted sentencing regimes that were individualized to a defendant's particular offense. As a notable example, The Wall Street Journal recently reported that Dr. Andrew G. Bodnar, a former high-ranking executive at Bristol-Myers Squibb, pled guilty to the misdemeanor charge of having made a false certification to the Federal Trade Commission on behalf of the company in settling a patent infringement litigation involving the blood thinner medication known as Plavix. (Loftus, Wall Street Journal, 5/16/12, A1.) Under the peculiar misdemeanor to which he pled guilty, Bodnar had to admit knowing that his statement to the FTC had been false, although he did not necessarily need to admit to knowing of the statement's falsity at the time of the original statement. In fact, when Bodnar pled guilty, he told the court that he did not know of the falsity of the statement when he made the certification to the FTC. Despite the qualification, the court accepted Bodnar's guilty plea.

In sentencing Bodnar to a two-year unsupervised probationary term, D.C. District Judge Ricardo Urbina directed as a special condition of the probation that Bodnar, a former Harvard English major, write a book so that he would reflect upon "the criminal behavior in this case so that others similarly situated may be guided in avoiding such behavior." (U.S. v. Bodnar, No. 08-cr-00115 RMU (D.D.C.)). Bodnar complied in a 75,000-word manuscript that actually became part of the record.

Will Bodnar be a repeat offender? Surely he will not commit a crime similar to the one to which he pled guilty. But will this particular sentence, and the fact that Bodnar had to write a book as part of his sentence, deter others? Probably not, because this particular sentence did not induce the necessary contrition in Bodnar. Instead, Bodnar's manuscript claims that the prosecuting Justice Department "was not averse to destroying an innocent life," and that it suffered from "a mistaken belief that [Bodnar had] made a statement to the government that [he] knew to be false." So much for a sentence that sought to force the defendant to seriously reflect on his own wrongdoing! Parenthetically, and as should be obvious, Bodnar was a poor choice for this sentencing exercise, inasmuch as he was essentially allowed to deny his own mens rea when he pled guilty.

Nonetheless, the Bodnar sentence, and what it attempted to accomplish, may encourage other judges to think "outside the box" in structuring sentences. Past attempts at such sentences include the punishment meted out to the convicted slumlord ordered to serve his house arrest as a resident in one of his own "slum" properties. (See Cleveland Plain Dealer, 12/20/08 at B1.) There was also the special condition that required an international parental kidnapping defendant to personally effect the return of his abducted children from Egypt to the children's mother in the United States. (U.S. v. Amer, 110 F.3d 873 (2d Cir. 1997)). Consider also a (since reversed) sentence which would have required a tax accountant convicted of filing a false tax return to notify all of his clients about his conviction. (U.S. v. Doe, 79 F. 3d 1309 (2d Cir. 1996)). Or an S.D.N.Y. sentence for a convicted credit card fraudster  whose special condition of home confinement required that he not watch television during his confinement -- reversed because the no-TV rule was found insufficiently related to the crime he committed. (U.S. v. Bello, 310 F.3d 56 (2d Cir. 2002))

For many defendants, especially those whose cases are not the subject of publicity, a special sentencing condition that the defendant "go public" with his wrongdoing may accomplish both individualized punishment and general deterrence in ways that traditional punishment does not. So, for example, imagine a convicted tax cheat who is required to give introspective lectures -- perhaps, both inside and outside his community -- that describe the details of his wrongdoing and how he may have victimized his listeners, whose taxes were accordingly increased. Or imagine an inside trader who is required to tell the stock-trading public how his own insider-aided short sales caused significant losses to the listener traders. Putting aside the personal ignominy that the defendant might suffer in having to become a public whipping boy, at least some defendants will suffer genuine punishment by actually being "ordered" by a judge to search their souls in forced "come to Jesus" experiences designed for self-examination and reflection.

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.