Kozlowski and Swartz A Challenge to NY to Be Reasonable

(Reposted for Monday, Sept. 19) It is likely to be a sleepless night for Dennis Kozlowski and Mark Swartz, as tomorrow is the day they are to be sentenced. Posted here are some thoughts on this sentencing, particularly the fact that if sentenced harshly they will be sent to a maximum security prison. But this case presents a challenge to NY State to show the rest of the world what sentencing is all about.  This case presents a challenge to New York to be reasonable in light of the ridiculousness of the federal system.

Sentencing Jamie Olis to 24 years, Bernie Ebbers to 25 years and John Rigas to 15 years may seem to be saying to the rest of world that we will not tolerate white collar offenders.  What people are not noticing is that this same message can be accomplished with significantly less sentences.  The corporate workers who are considering establishing shells to inflate the profit of their corporation would just as easily be deterred knowing that they could receive 10 years in prison as to receive 25. Where general and specific deterrence may have an effect when the robber decides whether to be armed or not in committing the robbery, the SHAME in the community is by far the harshest punishment felt by the white collar offender. That shame is felt irrespective of whether the sentence is 10 years or 25 years. In contrast the incapacitation of the robber is important to keep him or her from committing a future offense.  The white collar offender in almost all cases is without the power or ability to ever be a future menace on society.  This is especially true for the offenders who were in high profile positions like Olis, Ebbers, Rigas, and Kozlowski.

Recidivism is occasionally seen in the context of white collar crime, but the instances are with small time consumer frauds, internet scams, and thefts to companies.  In this context the crimes should appropriately be given equal treatment as if it had been a theft in a blue collar context.  Where the individual might be a menace to society in the future, incapacitation is necessary. The bottom line is to get them off the streets so that they can't commit the crime again.

Some may say that blue collar offenders feel the same shame and therefore all white collar offenses deserve equal treatment.  In some cases that may be true, and in those cases, it should be factored into the sentence received. Likewise disparity in drug sentences caused by the appalling difference in how we approach crack/cocaine sentencing is equally as offensive. It has gotten so bad in this context that not only is shame not felt, but honor may be seen in being given some time.  Check out rap music and read some of the work of Professor Paul Butler ("Much Respect: Toward a Hip-Hop Theory of Punishment," 56 Stanford Law Review 983 (2004) ) to understand this.  The system has obviously failed here.

But the bottom line is that New York State has the opportunity here to impose a reasonable sentence.  A sentence that factors in sending a message that white collar crime will not be tolerated, but also noting that these white collar offenders have suffered the shame of society and are unlikely to be a menace to society in the future. Sentencing requires a case-by-case analysis in order for judges to analyze all the factors of this particular defendant to this particular crime.  Not that having guidelines doesn't help, but Booker and Blakely helped to restore some reasonableness to the federal system. A system that gave prosecutors the exclusive power.

The pressure will be on the NY State judge sentencing in the Kozlowski and Swartz case to be tough on crime and match the sentences received by white collar offenders in the federal system.  But hopefully the judge will not succumb to that pressure and examine this case on its merits looking at age old principles like deterrence, incapacitation, and rehabilitation.

Sentence harshly for the crime committed, but also sentence reasonably.

(esp)