CAFE Insider Newsletter #15: Doing Justice — What has man done, not what has the law done

CAFE Insider Newsletter #15: Doing Justice — What has man done, not what has the law done

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Dear Reader,

March 19th is a personally momentous day for me. It marks the publication of my first book – “Doing Justice.” Writing it has been the hardest thing I’ve ever done – harder than any case I’ve tried or overseen. It took more work, more patience, and more dedication than any single thing I’ve ever had to do. I still can’t believe I finished it.

As I embark on my book tour next week, I anticipate I’ll be asked, “Why did you write this book?” It’s a question all authors are invariably asked.

I wrote this book because I care about justice. More specifically, I care about how justice is done and perceived and felt and also how it can be taught. This last point I realize borders a bit on arrogance — wanting to teach people how to do justice. How presumptuous!

But I think you can undertake such a weighty and arrogant task if you approach it with deep humility. Also with honesty and candor. As I say in the book, in SDNY we did not always get it right, but we tried hard and thought hard and never lost sight of the profound responsibility we owed to the public. In that humility it is possible to find truth and the right path.

For as long as I can remember, I’ve wanted to understand how justice is accomplished, what makes it thrive, how it dies.

My book is built on stories. There are tales of failure, uncertainty, and immense challenges where often there is no perfectly right answer. Justice is not math. The tales grow out of jolting stories of courage and heroism of so many unsung heroes whose determination to do the right thing has inspired me to my core.

The book, I should say, is not just for lawyers. It’s for everyone. I try to address questions that perplex all of us. The book is a guide, of sorts, to finding the right approach, the right mental model. It turns out that the law has something to teach us about resolving disagreements with reason and evidence rather than taunts and character assassination.

The principles I write about are informed by real-life human dilemmas, not legal texts and treatises that often operate in a hypothetical world of legal fiction. I went back to the cases and controversies that predate today’s legal battles. More important, I went back to the basics. What does it mean to be fair-minded? What does independence require? How do we exercise discretion wisely? What is sufficient but not greater than necessary?

These questions have no precise or certain answers, but society demands that they be answered every day. In a time of chaos and confusion, when faith in our institutions is eroding and disillusionment is growing, it is important to take a step back and recall first principles. These are the ideas I was concerned with when writing this book.

My hope is that that you will take the time to read it and then share with me the stories that have shaped your principles.

My best,

Preet

ORDER PREET’S BOOK “DOING JUSTICE”

In a newly published book review for the Lawfare blog, Chuck Rosenberg, former U.S. attorney and DEA chief, writes:

Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law” is written in a way that both an inside audience and a lay audience will savor. Trials and investigations are currently at the forefront of our national discourse, and Bharara does a superb job supplementing that conversation.

Of course, he is not the first to travel this path. What makes his book particularly absorbing—and worth reading—is that, among the many and important successes of his storied office, he also describes the uncertainty, the struggles, the failures and the dilemmas inherent in the work.

Order your copy of Doing Justice¸ which is also available as an audio book. Early sales often determine the success of a book, so thank you to everyone for showing your support and joining Preet and the CAFE Team in our pursuit and exploration of justice.

JUSTICE IN SENTENCING

This courtroom sketch depicts former Trump campaign chairman Paul Manafort, center in a wheelchair, during his sentencing hearing in federal court before judge T.S. Ellis III in Alexandria, Va., Thursday, March 7, 2019. Manafort was sentenced to nearly four years in prison for tax and bank fraud related to his work advising Ukrainian politicians, a significant break from sentencing guidelines that called for a 20-year prison term. (Dana Verkouteren via AP)

* BREAKING — We have just learned that Paul Manafort will serve a total of 7 1/2 years in prison. Judge Amy Berman Jackson imposed a sentence of 43 additional months in the D.C. case. His sentence of 47 months, imposed by Judge T.S. Ellis last week, sparked widespread criticism about the weaknesses in our criminal justice system. Many have expressed outrage that defendants convicted on white collar charges are punished far less severely than people convicted of so-called blue collar or non-violent street crimes like petty thefts and drug offenses. (In more late breaking news, Manafort was indicted on 16 counts of mortgage fraud and falsifying business records by the Manhattan District Attorney; Preet discusses all of this in greater detail on tomorrow’s episode of Stay Tuned).

In an essay for The Atlantic magazine, former federal prosecutor Ken White, who served in the U.S. Attorney’s Office in Los Angeles, wrote this:

“[J]udges are human. Racism and bias of every sort play a role in the system, but it’s too simplistic to say the problem is that particular judges are racist. The problem is that judges give breaks to people with whom they can identify—people whose humanity they recognize. We’re wired to identify with people like us. Judges—particularly federal judges—tend to come from backgrounds closer to Manafort’s than to the average drug dealer’s. Even when judges are born and raised in poverty, the process of becoming a lawyer, having a career, and becoming a judge makes them inexorably more like Manafort. The system has a homogenizing effect. As a result, the people who tend to get breaks are often people who have led privileged lives, like judges have.”

Does data suggest that race is an implicit factor in sentencing? In 2017, the U.S. Sentencing Commission studied the relationship between sentencing outcomes and demographic factors, such as race and gender. After accounting for various other factors, the Commission found that Black males received sentences 19.1% longer than similarly situated White males. The study also found that female offenders of all races received shorter sentences than White male offenders.

READ the Sentencing Commission’s report, “Demographic Differences in Sentencing” (November 2017).

More recently, in January 2019, the Sentencing Commission also answered this question: What does federal economic crime really look like?

Economic crimes, like embezzlement, theft, and fraud, account for approximately 10% of the federal caseload. The Commission analyzed data on 17 different types of economic offenses and found that offender characteristics like race varied across the types of crimes. For example, researchers found:

White offenders accounted for a substantial majority of securities and investment fraud (79.9%), computer related fraud (70.5%), and government procurement fraud (62.3%), while Black offenders accounted for the largest proportion of tax fraud (55.0%), identity theft (49.4%), and credit card fraud (45.0%).”

READ the report.

Manafort’s sentence of just under four years was a substantial departure from the federal guidelines range of 19 ½ to 24 years. Judges have wide discretion to impose sentences above or below the guidelines range by considering various mitigating and aggravating factors, including the defendant’s background, character, and conduct. A defendant’s assistance in an investigation has long been recognized as a mitigating factor that depends on the usefulness and reliability of any information the defendant provides, the extent and timeliness of the defendant’s assistance, and any risk of injury or danger to the defendant resulting from his or her assistance.

A court cannot take a defendant’s race, sex, nationality, religion, or socioeconomic status into account when imposing a sentence. Nor are a defendant’s disadvantaged upbringing or lack of guidance as a youth relevant factors. Other factors that ordinarily should not be considered include a defendant’s dependence on drugs or alcohol and personal financial difficulties. To learn more about the factors courts are permitted to consider in departing from federal sentencing guidelines, read the Sentencing Commission’s primer, Departures and Variances, from April 2018.

What factors should a judge consider when imposing a sentence? Let us know what you think by responding to this email or writing to us at letters@cafe.com.

CLARENCE DARROW

UNITED STATES – JULY 23: During the ‘Trial of the Century’, defense attorney Clarence Darrow, points a finger up while arguing for the defense in the center of a crowded courtroom in Chicago, July 1924. The young defendants Nathan Leopold and Richard Loeb can be seen seated to Darrow’s right. (Photo by Chicago Sun-Times/Chicago Daily News collection/Chicago History Museum/Getty Images)

Famed defense attorney Clarence Darrow (1857-1938) is a man who reminds us that justice ultimately depends on human beings, not just laws. His closing argument delivered during the 1925 murder trial in People v. Henry Sweet is one of the most beautiful summations ever spoken. Almost a century later, Darrow’s words remain relevant and full of lessons for all who aspire to be “kindly and decent and human and liberty-loving.”

The facts of the case were as follows: In the summer of 1925, Dr. Ossian Sweet moved his family to a home in a previously all-white middle-class neighborhood of Detroit. It was a time of growing racial tensions as thousands of African-American families migrated to northern industrial cities after World War I. Black families brave enough to buy or rent homes in white neighborhoods were often subjected to intimidation and violence. The Sweets were one of those families.

Two days after moving into their home, an angry mob threw rocks at the windows and yelled racial epithets. In the ensuing chaos, Dr. Sweet’s brother, Henry, while defending the home, fired shots into the crowd, killing a white man. Prosecutors sought the death penalty. Luckily for Henry, Clarence Darrow took on his defense, and won.

In the summation, Darrow talked about the meaning of justice and the plight of African-American people. Speaking to the jury, Darrow said of the African-American:

The law has made him equal, but man has not. And, after all, the last analysis is, what has man done? And not what has the law done.

Darrow also said:

“[A]fter all, every human being’s life in this world is inevitably mixed with every other life and, no matter what laws we pass, no matter what precautions we take, unless the people we meet are kindly and decent and human and liberty-loving, then there is no liberty. Freedom comes from human beings, rather than from laws and institutions.”

The presiding judge, Frank Murphy, reportedly told a friend after leaving the bench, “This is the greatest experience of my life. That was Clarence Darrow at his best. I will never hear anything like it again.” The summation, Darrow would say, was “one of the strongest and most satisfactory arguments” he had ever delivered.

READ Clarence Darrow’s full summation, and let us know your reaction by responding to this email or writing to us at letter@cafe.com

PRISON, PARDONS, AND HOAXES

Takeaways from episode 16 of CAFE Insider:

Pleading guilty vs. going to trial — Paul Manafort’s sentence: Manafort raised venue as an issue last year, forcing Mueller to bring some of the charges against him in Virginia, in addition to D.C., he was sentenced earlier today for conspiracy against the United States. Unlike in the D.C. case where Manafort pled guilty (to money laundering, tax fraud, failure to register as a foreign lobbyist, lying to the Justice Department, and obstruction through witness tampering), in Virginia, Manafort chose to go to trial on various tax and bank fraud charges. The widespread reaction that Manafort received a lenient sentence in Virginia may have been less visceral had he not gone through trial (where we learned a great deal, but now mostly remember his Ostrich jackets) and pled guilty instead. Manafort’s sentence is slightly higher than the average sentence of defendants who’ve pled guilty to the same crimes, but less than the sentence of defendants who’ve been tried and convicted of those crimes. Defendants who forgo trial and plead guilty typically get a break. When there’s no trial, the judge’s knowledge of relevant facts is limited to the information contained in the indictment and the plea allocution – which isn’t much. The nitty gritty evidence elicited at trial about a defendant’s wrongful conduct reasonably disposes judges to take a harsher stance by the time of sentencing. That didn’t happen in Manafort’s case in Virginia. Judge Ellis sentenced Manafort as if he had pled guilty or delivered on his cooperation agreement.

• Michael Cohen lying about a pardon should have never been an issue to begin with. Lanny Davis, Michael Cohen’s current lawyer, said that Cohen directed his former lawyer to inquire about the possibility of a presidential pardon just weeks after his properties were raided last Spring. Cohen publicly testified last month before the House Oversight Committee, “I have never asked for, nor would I accept, a pardon from Mr. Trump.” Cohen wouldn’t have credibility problems had he said, “I’ve been the President’s personal lawyer for a long time. I thought I’d get a job at the White House, but I didn’t. I was disappointed, but ultimately I realized it wasn’t what I wanted. And yes, when I was facing jail time, I thought of my family, I didn’t want to be in prison. I saw Trump pardon People like Joe Arpaio and Dinesh D’Souza, so my lawyers had some discussion with the president’s team. Nothing ever came of it and upon further reflection, I don’t want a pardon from this President.”

• Smollett and the difficulty of hate crimes: The incident involving actor Jussie Smollett’s alleged hate crime hoax does a disservice to law enforcement’s efforts to fight hate crimes which are fairly common, but rarely charged due to the difficulty of proving a defendant’s criminal intent. In addition to proving that a certain offense was committed, prosecutors must also prove that the defendant intentionally selected the victim in part because of a belief or perception regarding the race, gender, religion, age, disability or sexual orientation of that person. It’s also important to remember that intent is different from motive, which is irrelevant to most criminal inquiries. Intent could be thought of as referring to “what” was meant to be done, and motive “why” it was done. Supposing the facts in Smollett’s case were as he initially alleged, prosecutors would need to prove not only that they assaulted Smollett, but also that they targeted him because he is African American or gay.

If you haven’t already, listen to “Prison, Pardons, & Hoaxes

Please note: you may now manually add your unique feed to your favorite podcast app. Please sign in and visit the My Account section of the site. There, you will find the Podcast Link just under the words ‘My Account.’ Confused? Here are instructions for adding the feed.

THIS WEEK ON STAY TUNED

Ed Luce, the Washington columnist and commentator for the Financial Times, is this week’s guest on Stay Tuned. The wide-ranging interview includes a discussion of western liberalism, socialism, and other issues at the intersection of economic theory, politics, and justice. In this sneak peek of the interview, Luce talks about the strength of our democracy:

Trust, I think, is to democracy what fear is to autocracy. It’s the really important sort of glue that keeps our system’s functioning. So there’s been a decline and there continues to be a deep decline, and therefore rise in cynicism, in our institutions. That’s not a snap, one moment ‘democracy is broken’ measure; it’s an erosion. It’s a sort of, ‘termites in the floorboards’ measure. [Condensed and edited for clarity]

Don’t forget to listen to this week’s episode of Stay Tuned. It drops this Thursday, 3/14.

SOMEONE TO FOLLOW

Citizens for Responsibility and Ethics in Washington (CREW) is a non-profit focused on reducing the influence of money in politics. Their stated mission is to use “high-impact legal actions to target government officials who sacrifice the common good to special interests.” Follow @CREWcrew for the latest news analysis of questionable ethical practices in government.

SHOP CAFE

Get your Stay Tuned merch! Insiders get a special 20% discount on their first purchase. Use code: INSIDER20

That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at insider@cafe.com.

– Preet and the Cafe Team

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