Felicity Huffman’s 14-day sentence is unjust — because it’s too high

With as much subtlety and sophistication as a sledgehammer, social media erupted after Felicity Huffman’s 14-day sentence was announced, with commenter after commenter saying her sentence was way too light. A rich, white woman only received two weeks in jail. The system must be corrupt! Well, the system is corrupt, but not because Huffman’s sentence was too light, but because it was too severe.

But wait, you might be saying, she only received a few weeks; how can that be too severe?

Her sentence is wrong for at least four reasons:

1. Our criminal justice system still has an unjust “jail-first” mentality. The default sentence for a first-time non-violent offender who accepted responsibility where no one suffered any loss should obviously be something other than incarceration. If that type of offender — with no aggravating factors — isn’t getting probation, then who is? The problem is that we are so tied to putting people in jail, even people we know will never do anything similar again, that our default is some prison. That’s wrong. It’s important to keep things in perspective: Huffman didn’t hurt anyone and it’s not altogether clear that paying someone to take a test should even be a federal crime in the first place.   
2. Comparisons to other sentences show that those sentences are too high, not that Huffman’s is too low. With no sense of irony, the Huffman prosecutor cited other cases in which defendants received grossly and inappropriately high sentences as a reason to impose prison time on Huffman. For example, the prosecutor pointed to the case of Kelley Williams-Bolar, an African-American woman who originally was sentenced to five years in prison for using her dad’s address to get her kids into a different school district. The sentenced was later suspended to 10 days in jail. Everyone agrees: That sentence — even after it was reduced to 10 days — was obscene. Saying that Huffman should not get a probationary sentence because another prosecutor obtained an unjust sentence in another case demonstrates why we have a mass-incarceration problem. The prosecutor said at the Huffman sentencing: “If we believe in just punishment, we should not put the Williams-Bolars in jail while letting the Huffmans go free.” That’s true, but it means that we shouldn’t put the Williams-Bolars in jail, not that we should put both in prison.
3. Huffman has suffered enough, and jail will not deter her any more from committing other crimes than she already is deterred. One of the stated purposes of sentencing is specific deterrence — how can we make sure that this person doesn’t commit the same crime again? There is no credible argument that the 14 days in prison will deter Huffman in the future. The arrest at gunpoint, charges, publicity, conviction, shame, and everything else that goes along with being a defendant in federal court are certainly enough to keep her on the straight and narrow. As for deterring others, there is scholarly agreement that prison time does not actually deter others. What deters others is the fear of being caught, and the charges in this case certainly served that purpose.
4. Finally, 14 days does not serve the purpose of rehabilitation. Felicity Huffman fully accepted responsibility for what she did. And now she must focus on repairing the relationship with her daughters. After the sentencing, she said: “I accept the court’s decision today without reservation. I have always been prepared to accept whatever punishment Judge Talwani imposed. I broke the law. I have admitted that, and I pleaded guilty to this crime. There are no excuses or justifications for my actions. Period.” What else do we want from her?

You might be reading this and saying, fine, but it’s only a few weeks in prison… what’s the big deal?

The reality is that Huffman was likely sentenced to 14 days in prison because of her fame, not in spite of it. This will have a negative impact on the run of the mill case, leading other first-time non-violent defendants to prison, when there is no need for it.

Even a few weeks in prison can have enormous effects on people who are caring for young children, are single parents, have a steady job, and so on. A sentence like this for Huffman sends the wrong message to judges that “short” sentences are appropriate punishment and serve a purpose when they do just the opposite.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.