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At the risk of making Draco blush, Congress appears poised to clamp down even tighter on federal judges’ sentencing discretion. A bill attached to the “Amber Alert” legislation that would eliminate many of the grounds for downward departures, and require de novo appellate review of sentencing decisions, appears to be gathering momentum. It’s unclear whether this provision will be limited to child abuse cases or broadened to other areas. But we’d like to suggest one where it might be appropriate: sentencing for white-collar criminals. If there’s one area where federal judges seem determined to treat criminals with kid gloves, this is it. While drug dealers, bank robbers and people vaguely suspected of terrorism get put away for eons, defendants charged with corporate crimes — or those who simply have a corporate background — seem to be catching big breaks, at least in the Bay Area. Take the case of former Media Vision CFO Steven Allan. He was tried and convicted of defrauding investors in his company out of more than $80 million (prosecutors argued that it might have been $300 million). The fraud was deliberate — contracts were backdated, and unsold merchandise was concealed on offshore barges. The U.S. Probation Department recommended 10 years in prison. Under today’s post-Enron statutes, Allan would have been looking at even more than that, because let’s face it, defrauding people out of $80 million is not a nice thing to do. Even if you aren’t brandishing a gun or threatening a teller, you’re stealing roughly 10,000 times more money than in the typical bank robbery. But U.S. District Judge D. Lowell Jensen of Oakland sentenced Allan to 3 1/2 years in prison. Jensen, the former district attorney of Alameda County and not anyone’s idea of a soft sentencer, was impressed with Allan’s exemplary record in the community. “I’ve never seen so many letters,” Jensen said at the sentencing hearing. The crime was “. . . out of character and it is aberrant in any real sense.” Jensen also gave Allan a break because the judge believed CEO Paul Jain, who had cut a deal with the government in exchange for testimony, was the more culpable party. But isn’t this how convictions are routinely obtained in drug cases, gang cases, etc.? Allan’s punishment called to mind the probation-only sentence handed down last year to former Crosby, Heafey, Roach & May partner Malcolm Wittenberg, who had pleaded guilty to insider trading, a felony. In sparing Wittenberg from jail, Judge William Alsup cited Wittenberg’s “stellar” record of community and professional service. “In my 2 1/2 years on this job I have not seen a record that is more deserving of the label outstanding good deeds,” Alsup said at sentencing, citing — what else? — the numerous letters sent on Wittenberg’s behalf. It is said that criminal street gangs show remarkable enterprise in setting up elaborate networks for dealing drugs and protecting their turf. What those gangs really need to do is organize a cabal of letter writers to weigh in whenever one of their members gets convicted. Somehow, though, I suspect our judges would be less impressed by heart-tugging missives from the homies. Finally, while it’s not a white-collar crime per se, consider the difference in sentencing handed down to former Microelectronics Research CEO Michael Rostoker and ordinary citizen Rhoda McCoy. McCoy, who lived in military housing with her husband, a naval petty officer, pleaded guilty to taking a single photograph of her 10-year-old daughter naked and exposing herself. It was stipulated that the photograph was not intended for sale or for posting on the Internet. McCoy was sentenced to 30 months in prison. (Her conviction was recently reversed on appeal due to a jurisdictional issue.) By comparison, Rostoker underwent a month-long trial in which he was convicted of 11 counts of traveling to a foreign country to actually have sex with a 13-year-old girl and of using the Internet to induce the minor to engage in illegal sex acts. Rostoker’s sentence: 15 months, exactly half of McCoy’s. U.S. District Judge Ronald Whyte of San Jose was persuaded to go easy in part due to — you guessed it — 31 letters from attorneys, friends, colleagues and the victim’s parents. Ultimately, we think it’s important that judges everywhere maintain some sentencing discretion, so that they may act as a safety valve in the exceptional case. We’d be more comfortable, though, if those exceptional cases didn’t seem so often to involve defendants of the same race and class as the sentencers. Especially those whose only crime is to steal $80 million.

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