Spin the Wheel, Get a Corruption Sentence

[WSJ Law Blog]

Shortly after the Supreme Court handed down its decision in United States v. Booker in early 2005, folks in the criminal-law world voiced alarm. After all, in Booker, the court had ruled unconstitutional the federal sentencing guidelines, leaving judges theoretically free to, well, follow their own guidelines.

Whatever worry there was, though, was mitigated fairly quickly by a sense that while the judges weren’t required to follow the guidelines, they’d still adhere to them fairly closely. And that’s the assumption we’ve been living under for the past several years — that Booker failed to bring about a revolution.

An article from the Philadelphia Inquirer over the weekend, throws a little dash of water on this assumption, however, especially when it comes to corruption (and heaven knows that everyone in New Jersey and surrounding states has corruption on the brain these days).

Exhibit A: Pennsylvania’s Vincent J. Fumo, a former Pennsylvania state senator. Earlier this year, Fumo was convicted of 137 federal corruption counts. His sentence: 4 1/2 years imprisonment.

Exhibit B: New Jersey’s Wayne Bryant (pictured), a former New Jersey state senator, who last year was found who was found guilty on 12 federal corruption charges. His sentence, handed down Friday: Four years imprisonment.

“We’re certainly back to much more subjective and idiosyncratic and discretionary sentencing,” said Edward Ohlbaum, a law professor at Temple University, to the Inquirer.

Some find the granting of additional discretion a welcome development. Mark E. Cedrone, white-collar defense lawyer in Philadelphia, said Booker untethered judges from rigid guidelines. The question has turned, Ohlbaum said, to “how severely a judge may depart from those guidelines, and what, if anything, a judge will need to explain.”

Thing is, in regard to corruption cases, unpredictability seems the rule of the day.

In May, for example, a former New York assemblyman was sentenced to 10 years in prison after pleading guilty to racketeering charges that he pocketed $2.2 million from various sources. On the other hand, former New Jersey Sen. Sharpe James, was sentenced in 2008 to less than two years in prison after a jury found him guilty on five fraud charges.

Why the disparity? Edwin Stier, a former federal and state prosecutor in New Jersey, says part of the reason owes to the fact that politicians can better portray themselves as mostly upstanding public servants who have strayed - and then get prominent folks to write letters of support.

“All of that comes pouring across the judge’s desk,” said Stier, “and the judge has to sort through it and balance the record of the individual for his good works and public service against the extent to which he’s engaged in corrupt acts.”