In three current high-profile cases, government prosecutors are falling all over themselves in calling for the harshest possible sentences.
Last year, Catherine Pugh resigned her position as mayor of Baltimore and pleaded guilty to conspiracy and tax evasion, after having sold her self-published “Healthy Holly” children’s books to several companies that do business with the city (as well as to the University of Maryland Medical System, where she sat on the board).
Federal prosecutors promptly issued a harsh sentencing memorandum: “The chronology of events since 2011, comprising Pugh’s seven-year scheme to defraud, multiple years of tax evasion, election fraud, and attempted cover-ups, including brazen lies to the public, clearly establishes the deliberateness with which she pursued financial and political gain without a second thought about how it was harming the public’s trust.” They recommended a sentence of nearly five years in prison.
The fact is that Ms. Pugh could hardly be disgraced more than she already has been. Anything more than a modest sentence — or, better, probation — is clearly excessive.
Roger Stone’s case is just as compelling. Convicted of lying to Congress and tampering with a witness to prevent investigators from discovering how the 2016 Trump campaign tried to benefit from stolen Democratic documents, the government argued that Mr. Stone, 67, should be sentenced to nine years in prison. During the trial, his lawyer described him as a “natural braggart whose claims of insider information didn’t match reality” — but that he didn’t have any “corrupt intent” and that there was reasonable doubt as to his conviction.
Nine years for lying, when many of those convicted of serious crimes like rape and aggravated assault serve little if any time in prison?
Michael Avenatti’s situation is a bit more complicated, but likewise reflects prosecutorial overreach. The brash lawyer is best known for representing pornographic film actress Stormy Daniels in her lawsuits against President Donald Trump. Last spring prosecutors accused him of taking a portion of Ms. Daniels’s book advance and applying it toward his personal expenses (dry cleaning, food deliveries and monthly payments on a Ferrari). He was also convicted of trying — but failing — to extort more than $20 million from the apparel giant Nike.
Mr. Avenatti was jailed without bond, and held in solitary confinement in a freezing cell at New York’s Metropolitan Correctional Center. Scheduled to be sentenced on June 17, he could face up to 42 years in prison.
Most citizens do not realize that the only institution of government that is not subjected to our hallowed standards of checks and balances is the prosecutorial branch. The rationale behind this policy is sound: it is important for prosecutors to be independent of politics. Because they are guardians of justice, the Supreme Court has immunized them from legal liability.
Examples of abuse are not hard to find. An Alabama mother was shackled in front of her children for failing to pay parking tickets and forced to clean the courthouse bathrooms to earn her freedom. A disabled man in Missouri was jailed in a moldy cell without access to his medications because he could not afford to pay a fine.
In his recent book “Usual Cruelty,” civil rights attorney Alec Karakatsanis argues that such experiences are not unusual, but intended choices society has made. “The decision to make something punishable by human caging authorizes the government to treat people in ways that otherwise would be abhorrent.” Mr. Karakatsanis describes the banality with which the wheels of law enforcement, the courts and prisons operate because they “become desensitized to the pain we cause, and to live our lives without the intellectual and moral rigor that should have prevented so much senseless suffering of powerless people in the name of ‘law enforcement.’”
Other civil libertarians have long bemoaned prosecutorial overzealousness. Many of the abuses occur behind closed doors, in the secrecy of grand jury rooms and in courtroom corridors where secret deals are made with informers. Prosecutorial decisions and actions are among the least transparent of any government officials. But prosecutors are not above the law.
It is also important to recognize what a number of studies have found: there is virtually no link between incarceration and a decrease in violent crime.
U.S. District Judge Deborah Chasanow is scheduled to sentence Ms. Pugh on Feb. 27. Mr. Stone’s case is being handled by federal Judge Amy Berman Jackson, Avenatti’s by Judge Paul G. Gardephe.
Let’s hope they all have the wisdom to be proportional in their sentencing, and recognize prosecutorial motivations.
As the Romans asked, “Who will guard the guardians?”
Kenneth Lasson (firstname.lastname@example.org) is a professor of law at the University of Baltimore, where he specializes in civil liberties and international human rights.