Deterrence (or something…)

(This is a long post, hang in there with me)

I have an interest in the idea represented by the word “deterrent”, (or deterrence). That is, deterrent as used in the courtroom, when a judge or prosecutor says it. They use the term to justify the sentence they want imposed or are imposing. It describes the part of the sentence that generally accounts for it being greater than it otherwise would be, if the sentence was simply retribution for the crime. ‘An eye for an eye’ or ‘a tooth for a tooth’ are purely retributive sentences. (Although Bible scholars tell us it was meant as a limit on a crime’s punishment rather than a prescription, i.e. the harm of the sentence should be no greater than the harm of the crime. Not that there weren’t penalties that were multiples of the harm.)

My intense interest is due to the great usage of “deterrence” made by my prosecutor- first in his closing statement to the jury at my trial, and then in his statement to the judge at my sentencing, and by the judge when he justified the sentence he imposed on me.

I, Mr. BCC, was punished for my “crime” and also, somewhat more, so that you other similarly vocationed-as-me souls out there, will have to think twice, before greedily proceeding down the same nefarious road. That’s the whole point of “deterrence”. (I know what you’re thinking- ‘C’mon Mr. BCC, don’t keep me hanging. Tell me, for God’s sake, what blue collar felony did you commit?’) Here are three answers to that question. Take your pick.

1) You can’t handle the truth!
2) In due time, my friend. I write this from a precarious position, not knowing if my next post will be my last. (I’ve heard stories. Credible stories.) The dust will have to settle before I’m sure that’s a good idea.
3) “I’m sorry, my son, but it’s too late in asking. Mr. Peabody’s coal train done hauled it away.” (name that artist)

Where was I? Oh yes, deterrence.

I have now read 3 or 4 ‘white papers’ on the subject. (What is a ‘white paper’, anyway? Everything I put my hands on is black ink on white paper!) The one I just finished was no better or no worse than the others I’ve read. My apology to its author, because I’m going to pick on his. If he wishes to respond, the webmaster of will gladly publish it, with appreciation. (You will, Mr. Webmaster. With gladness.) This white paper (or article) is entitled- “Is Deterrence Relevant in Sentencing White-Collar Criminals?“, by Peter J. Henning (@peterjhenning), Wayne State Univ., for its Law Faculty Research Publication.

In his introduction, he cleverly and dramatically sets forth the concept of “deterrence” by reference to Bernie Madoff. The Pre-Sentencing Report from the federal probation office recommended to Judge Denny Chin, a sentence of 50 years. For a 71 year old man, that was effectively a life sentence.

The judge felt that Mr. Madoff’s crimes were “extraordinarily evil” and thus he deserved the maximum allowable sentence. But beyond that, Judge Chin wanted to tack on an extra measure to deter anyone else from ever repeating this offense. He therefore sentenced him to 150 yrs. Presumably without parole.

Prof. Henning argues, rightly I believe, that this message of deterrence is likely never to be received by those similarly situated to bad ol’ Bernie, nor its effects felt by its intended targets.

What then is the point, and does it have much of a significant place in reaching a “just” sentence, or in the sentencing calculus at all?

Prof. Henning questions whether the punishment of w.c.c. “A” would have an impact on a similar potential offender “B” since, 1) “the set of circumstances that allowed (A’s) crime to occur” was “unique” and the product of many variables, and 2) just as may have been the case of the w.c.c. (white collar criminal), other potential offenders would not believe they were engaging in wrongdoing that needs to be deterred. (some paraphrasing)

Furthermore, on pg 31, footnote 18, from an article he references- we read that, if our purpose in sentencing is utilitarian (that is, one that shoots for the desirable effects (for society), not only must the beneficial effects on the offender and would-be offenders be considered, but also the costs and undesirable consequences of the punishment. (paraphrased)

These costs and undesired consequences are seldom imagined. Judges seem to hand out sentences as though they are “free lunches” to society. (Just a fact. They are not omniscient and can’t know the true costs, even if they tried; which seemingly, they don’t.) The negative cost or impact on society, though, should not outweigh the benefit that the cost obtains.

In my case, that would be the good jobs that were lost to good people when I had to close my business. In larger terms, when I think of the approximately 100 wcc’s on camp, it’s easy to imagine that if we were extracted from the same small town, of say 2,000 residents, it would likely bring that town to its knees. Because we’re not all from the same small town, life has gone on, but that is because the detriment has been made diffuse, not that it isn’t still real.

Prof. Henning say (p32), “Deferrence has value … because it works to keep judges from succombing to the impulse to see white collar defendants (hereafter, wcd’s) in the warm light of a contrite individual who engaged in aberrational conduct but is unlikely to offend again.”

This seems to me to defend that which is not worth defending; having shown the lack of substance to the argument for deterrence, which Henning has already shown to be mostly void. If keeping a judge from looking positively upon an offender (and its a rare event that wcd’s are repeat offenders) is what confers “value” to deterrence, what is that value worth?

Henning writes, (p41), “unlike the consequentialist (i.e. deterrent-ed.) approach, retribution mirrors society’s moral judgment …. usually measured by the harm it caused.” In other words, society cares about payback rather than prevention. What happens though, when the crime is essentially victimless and there are no true “victims” or “impact”? From numerous interviews with fellow inmates I’ve had in the short time that I’ve been “down” (cool convict-speak), this is not uncommon (see previous stories on this website). From my personal experience and those I’ve talked to, the government will have its pound of flesh, even if the victim is fictitious, or the harm non-existent.

In his section on “Does Deterrence Work For White-Collar Crimes?”, Henning considers the impact of longer sentences on deterrence, which he posits should be more effective on wcc’s, given their higher levels of education, social & economic standing. Accordingly, if positive results from ‘deterrent-enriched’ longer sentences are obtainable, it should result in a decrease in wcc. “Yet the number of prosecutions for economic crimes,” says Henning, “… would seem to indicate there has been little appreciable impact from the hefty sentences meted out.”

In this same section, Henning questions, as an argument against the usefulness of Deterrence, whether the thought-processes (or, “rationalizations”) of wcc’s immunizes them against the rational conclusions that Deterrence requires. Henning says that wcc’s “engage in a process of “neutralization” to minimize their misconduct”, as is this is a pathological marker for the distinct group known as “wcc’s”.

I’ve got a few problems with this.

1) It assumes actual guilt, as though the gov’t only prosecutes guilty people. This is a failure of imagination. I suggest Prof. Henning arrange to have the learning experience that comes from living and talking with me and my new friends. I would also encourage him to read Cardiac Arrest, Licensed to Lie, Devil Inside the Beltway, etc, so as to incorporate the psychological facts about prosecutors into his analysis.

2) What Henning calls “rationalization”, I call “decision-making”. It’s how our minds work-identifying problems, considering alternatives, choosing best courses of action, and then committing to meet the challenge of whatever consequences arise. To accept the thesis of Harvey Silverglate’s Three Felonies A Day is to accept the fact that in today’s America, finding solutions to problems that are truly “felony-free” and are still viable, can be extremely difficult.

3) The overall tenor of this part of the article, to me at least (having recently read Orwell’s ‘1984’), is that Henning is dabbling in the realm of “thought-crimes”. To be fair to him, he seems to have in view wcc’s such as embezzlers. He neglects to consider that wcc’s are shades of gray from white to black. If embezzlement isn’t black, when doing it with the intention to pay it back, then it’s at least a dark gray. Unfortunately, many wcc’s’ crimes are not what got them their felony- it’s the lying “whistleblower” or a rogue gov’t agency.

Henning gets still closer to my argument when he recognizes that some criminality is questionable (p54). But even there he refuses to believe that the justice system as it currently is, or as it often operates, is itself significantly unconstitutional. [See conclusion to ‘Three Felonies A Day’] He doesn’t even tip his hat to the idea that prosecutors may be improperly motivated, judges sufficiently impartial, the rules of evidence as narrow to the defense as the ‘eye of a needle’, or Brady material (i.e. exculpatory) conveniently inaccessible.

With all the injustices that have come to light in recent years, due mostly to a power-mad DOJ, to attempt to find the center of the problem by only considering the inner workings of the human mind, would be like seeking the cause and cure of cancer by reference to only those medical textbooks from the 1950’s.

Henning shows that he is not unaware of all this. Before moving to the conclusion, he says this, “But for white-crime violations, there can be any number of situations in which individuals have no conception that what seem to be ordinary business decisions can subject the person to criminal prosecution in addition to potential civil liability. So talk of deterrence in this context is largely meaningless.”

It’s his conclusion that drives me bonkers the most. (Notwithstanding bcc’s friends and family who would be quick to point out- “that would be a very short drive.”) The title of his last section is: “Conclusion: Deterrence Still Matters”. It’s his reasons for holding tenaciously to the validity of deterrence that is maddening.

Henning starts his conclusion by saying, “Just because deterrence does not seem to have an appreciable impact in reducing the amount of white-collar crime does not necessarily mean it is unimportant and should not be discarded from the process of imposing punishment.”

(OK, this is going to be fun. Henning is going to now try to convince us that 0 + 1 = 2.)

Then he moves to bring in the opinion of another opiner on deterrence, whose thoughts on the subject are “in the context of contentious legal issues like capital punishment, gun control and hate crimes.

That’s certainly not going to be helpful, since we’re discussing “white-collar violations”, (for which) “there can be any number of situations in which individuals can subject the person to criminal prosecution”.

Henning’s concluding ‘conclusion’ contains these statements:

1) “Even if it does not actually deter other potential defendants, it can deter judges from going to one extreme or the other ….” [Does this not just change the entire meaning of the idea of deterrence we’ve been considering?]

2) “Thus, one should not ask whether a particular sentence will deter others from committing wcc’s, because it will not. Instead, ask whether there is a message in the sentence to society that the court views this violation as serious …..regardless of whether anyone will actually hear that message.

To me, reading thru this entire article confirms to me that Deterrence is a loosey-goosely concept, capable of being made to mean whatever our justice dept. and judicial system want it to mean. I ask you to remember this the next time you hear it!

And to question what mischief/injustice it’s meant to cover.