Law and Literature

Long a believer in and advocate of alternative sentencing, I am bemused by the recent creativity of one federal trial judge.

District of Columbia Judge Ricardo Urbina ordered a pharmaceutical executive convicted of making a false statement to government investigators about his company’s actions in a patent dispute to write a book in lieu of being sentenced to prison.

This defendant had pleaded guilty to a misdemeanor, though his conduct pertained to a multibillion-dollar negotiation between drug companies that was anti-competitive and inclined to deny the public access to a lower-priced drug. The defendant also paid a $5,000 fine and was put on probation; his company paid a significantly larger ($1 million) fine.

The same judge had issued a comparable writing-assignment sentence before — “written penance,” one press report called it. In that case, a lobbyist was sentenced to a fine and probation (he had cooperated with a special counsel investigation) on the condition that he write a monograph on the subject of his lobbying misbehavior and distribute it to the 490 members of the American League of Lobbyists. It was an interesting sort of literary pillory.

I offer two observations. One — if judges used creative sentencing as a regular alternative rather than sending non-dangerous convicts to prisons, this instance would be commendable and unremarkable, if rather lenient. Public service in the community makes more sense economically and as a correctional policy than imprisonment, in a large percentage of cases. Reconciliation between offenders and victims is a wise goal. Cost-cutting is necessary, indeed critical, because prisons are so overcrowded.

There is a rational connection between correctional ends and means by compelling useful, creative community service. Whatever one thinks about Michael Vick, for example, little was gained by his serving his sentence in prison. Had he been ordered to fund and work for an animal-rights organization during the same period, some public good would have come from his sentence, and the public would have been spared the costs of his expensive incarceration. In short, alternative sentencing makes sense. But there needs to be a reasonable relationship between the offense and the sentence, which cannot be a token punishment. And it should be used systemically, not in the rare white-collar case.

That leads to observation No. 2. If, in the case under consideration, the pharmaceutical executive’s misconduct was part of a price-control deal that speculatively cost the public billions, writing a book makes little sense unless it candidly tells a story of how drug companies fleece the public by conspiring to inflate prices. The judge’s “book proposal” suggested that.

But the First Amendment would not allow him to do more. The judge’s order stated that: “In the interest of deterrence and promoting respect for the law, the court orders that the defendant write and complete a book reflecting upon the experience associated with the criminal behavior in this case so that others similarly situated may be guided in avoiding such behavior.”

How does this book get published and promoted? If it isn’t read widely, what good is accomplished? Is the judge going to order some trade publisher (is there one under indictment?) to publish this book? Unlikely. So the exercise could amount to no more than this convict writing on the blackboard a thousand times, “I won’t cheat again.” Not a sound sentencing alternative, nor the cautionary tale anticipated by the imaginative jurist. It was less punitive than his order in the lobbyist’s case noted earlier.

The judge’s motivating idea is a very good one. But offering alternative sentencing occasionally — and at that, only for white-collar criminals — and requiring no truly redemptive public service makes the action hollow, regardless of how well-intended the judge is. Perhaps the creative judge should write a book, on the wisdom and ways of effective alternative sentencing.

Visit www.RonaldGoldfarb.com.