L to R- Alan Zegas and David Wildstein. David Wildstein pleads guilty in Federal Court in Newark, NJ, on May 1, 2015, in the NJ Bridgegate Scandal. (Carmen Natale)
One may ask why David Wildstein, the so-called “mastermind” of the Bridgegate scandal, was given a non-custodial sentence while lesser participants received sentences of incarceration. The answer is clear: Wildstein cooperated with the U.S. Attorney and provided evidence used to prosecute others. The U.S. Attorney requested a non-custodial sentence, and Wildstein got three years’ probation and 500 hours of community service.
We are reminded of the discussion of the purposes of sentencing and the role of the sentencing judge developed by our state Supreme Court in the 1960 opinion of Chief Justice Weintraub in State v. Ivan, 33 N.J. 197 (1960). Much of what he had to say, particularly about the need and ability to deter, can be seen within the New Jersey Code of Criminal Justice’s sentencing emphasis on the significance of the crime as opposed to the offender.
Ivan, a first offender, was sentenced to one to two years in prison for bookmaking. Although his sentence was within statutory parameters, he claimed it was illegal because of “a preconceived policy that offenses of that kind merit the sentence imposed without regard to the circumstances of the individual offender.” The opinion notes that, according to the presentence report, “defendant would not reveal the identity of his superior in the gambling operation,” claiming only to know his first name, and that the trial judge “made it plain that he would take another course if the defendant, instead of protecting others and thus assisting them to continue their illegal venture, had evidenced a willingness to side with law and order.” And, said the court, “if the crime is a calculated one and part of a widespread criminal skein, the needs of society may dictate that the punishment more nearly fit the offense than the offender,” as in the bookmaking case involved.
Bridgegate involved no ongoing criminal enterprise, but did involve a matter of great public inconvenience and concern—an act that had to be deterred in the future. As Chief Justice Weintraub said in Ivan: “The trial judge wisely coordinated [the legislative policy of stern punishment] with the social gain in the redemption of the individual. He offered defendant a chance to make a clean breast of his associations. The offer had a dual purpose. It tested the capacity of defendant for rehabilitation by lesser punishment. It also sought to obtain for law enforcement officials the aid they needed if they are to succeed in their exhausting efforts to stamp out syndicated crime or at least to hedge in it.”
It is worthwhile to be reminded of the philosophy of the Ivan opinion from time-to-time: Crime may not pay, but cooperation by a criminal certainly does.