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September 10, 2019

Interesting arguments from federal prosecutors concerning why Felicity Huffman should get some jail time

Though I have not been able to find online all of the sentencing submissions in the college scandal case, the fine folks at Deadline have posted here the nine-page "Government’s Supplemental Sentencing Memorandum Concerning Defendant Felicity Huffman." The whole document makes for a fine read, and these paragraph at the very end struck me as especially effective:

Finally, other considerations also support the government’s proposed sentence of one month of incarceration.  In the context of this case, neither probation nor home confinement (in a large home in the Hollywood Hills with an infinity pool) would constitute meaningful punishment or deter others from committing similar crimes.  Nor is a fine alone sufficient to reflect the seriousness of the offense or to promote respect for the law.  Even a fine at the high end of the applicable Guidelines range would amount to little more than a rounding error for a defendant with a net worth measured in the tens of millions of dollars.  See, e.g., United States v. Zukerman, 897 F.3d 423, 431 (2d Cir. 2018) (“A fine can only be an effective deterrent if it is painful to pay, and whether a given dollar amount hurts to cough up depends upon the wealth of the person paying it.”), cert. denied 139 S. Ct. 1262 (2019).  Likewise, community service, especially for the famous, is hardly a punishment — which is why many non-felons gladly perform it in the absence of court orders.

The government’s recommended sentence of incarceration for a term of one month is sufficient but not more than necessary to achieve the goals of sentencing.  It would provide just punishment for the offense, make clear that this was a real crime, causing real harm, and reinforce the vital principle that all are equally subject to the law regardless of wealth or position.

September 10, 2019 in Alternatives to imprisonment, Theories of punishment | Permalink


The rest of the sentencing memo recommends a $20,000 fine, which is interesting considering the quoted language which suggests a fine would not be very effective. It also mentions in a footnote the logistical complications of funneling the fine toward "federal government programs supporting educational opportunities for under-privileged Americans," which I suspect many of us wanted in our own sentencing of Huffman (a rather obvious corrective measure).

(speaking of rounding errors, $20,000 should buy you about 10 credits at USC).

I noticed there was no attempt to account for how much Huffman benefited from her misconduct. Can you value a good SAT score? Admission to x y or z college? It does mention that she financially benefited from the duplicitous persona she put out as the scheme was under way. This quoted language from her blog hasn't aged well:

"figuring out how much of a “yes” is in that “no,” learning how the power system works and how to make it work for me; were my true education. . . . "


Posted by: Willie VerSteeg | Sep 11, 2019 2:39:42 PM

I find it interesting how the argument cites a society-level goal of deterrence, but then grounds itself in particularized notions of justice. Deterrence has long been a valid objective of punishment, but I think it was a mistake to focus on specific, rather than general, deterrence.

House arrest is not enough because she has a nice house, a fine is inadequate because she is rich, and community service is negligible because she is famous. So, increasing punishment based on these factors "will deter others from committing similar crimes" and show that "all are equally subject to the law." I disagree. It may deter the small percentage of people similarly situated, but falls well short of doing anything for the large portion of "non-famous" society. Further, it shows that punishment is anything but equal, because it scales based on socioeconomic status (not necessarily a bad thing, especially with white-collar crimes). In brief, the argument makes sense to deter her specifically, and maybe a few others, but it is silent on reasons why the punishment serves the purpose of deterrence on any meaningfully applicable scale. This is not to say that such reasons don't exist, they do, simply that they weren't made a part of this argument.

Posted by: Patrick Cleary | Sep 11, 2019 2:53:30 PM

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