Who is the worse person — the mother who drywalls her three little girls into a bedroom for several hours, or the politician who steals $350,000 from children? Who is more deserving of severe punishment — the trusted archivist who steals hundreds of the nation’s treasured historical objects and hawks them on eBay, or the developer who stuffs politicians’ pockets with more than $400,000 in bribes intended to win support for building projects?
In one 24-hour period in Washington area courtrooms, wildly different offenses in prominent cases produced extremely varied punishments, raising the question: What crimes deserve greater punishment than others, and how should that be determined?
Christina Moore, the Bristow mother who joined her husband in barricading their little ones inside a bedroom, got a nine-year sentence Thursday, but most of that was suspended by Prince William County Circuit Judge Richard Potter, meaning Moore is likely to spend less than six months in prison.
Harry Thomas Jr., who resigned as D.C. Council member for Ward 5 after he admitted stealing more than $350,000 in city funds intended for youth sports programs, was sentenced to 38 months in the clink, less than federal guidelines call for. U.S. District Court Judge John D. Bates said he diverged from guidelines because of Thomas’s “true remorse” and “full life’s work.”
Does Thomas deserve a longer sentence than Moore because his misdeeds affect more people, or because he held a position of public trust?
“To me, the drywall case is the most egregious,” says Michele Roberts, a longtime defense lawyer in the District. “But sentencing is the most difficult part of a judge’s job: No matter what, someone will think each of today’s sentences is too harsh or too lenient.”
By popular consensus, violent crimes receive harsher punishment than white-collar offenses. “When you shoot, kill or rape someone, that’s very serious conduct and different from corruption,” Roberts says. “But there’s a class element involved in a lot of these distinctions. Murder is still murder; it doesn’t matter what your class is if you’re convicted of it. But the robber of a convenience store is likely to get a lot more time than someone who committed accounting fraud, even if it involved a million dollars.”
On Thursday, both Leslie Waffen — a longtime National Archives librarian who admitted stealing 955 items from his workplace, including original recordings of radio reports on the 1937 Hindenburg zeppelin disaster and the 1948 World Series — and Mirza Baig, the Laurel internist and developer who was caught on tape handing former County Executive Jack Johnson $15,000 in cash, got 18-month sentences.
In essence, both stole something from the taxpayers, whether it was rare bits of history or trust in a high public official. But is the damage they caused worth incarcerating them three times longer than the sentence Moore will likely serve for what she inflicted on her girls — ages 3, 4, and 18 months — when she screwed drywall to the doorjamb and sealed them inside because, the parents said, the children had been misbehaving and mom and dad needed a break?
Or is Moore’s the lesser crime because she is remorseful, was addicted to prescription opiates at the time, and maintains she has straightened herself up?
Punishments for nonviolent crimes have increased dramatically in recent years, yet “the rationales used by judges in their decisions are all over the map,” says Erin Kelly, a philosophy professor at Tufts University who studies theories of justice and punishment.
“Most people would find the idea of stealing money with a weapon more threatening than embezzling money from a business,” Kelly says, “but if you think of the social damage caused by stealing huge amounts of money, you can see a real discrepancy in the punishments we assign.”
Such discrepancies have developed in part because American justice has shifted in the past quarter century from what philosophers call a “consequentialist” approach — the bad guy should be punished with an eye toward repairing the damage he caused and rehabilitating him — to a “retributive” approach, in which “wrongdoers deserve punishment proportionate to their culpability,” Kelly says.
Three-strikes-you’re-out laws, mandatory minimum sentences, zero tolerance policies and the abolition of parole are markers of a system aimed at separating wrongdoers from society rather than changing their behavior.
A jury’s decision Wednesday to recommend 22 years in prison for the husband of Falls Church’s former mayor because he molested two girls at his daughter’s sleepover birthday party is the outlier in this spate of decisions: The obvious consensus about the horror of child abuse is so strong that jurors feel comfortable imprisoning Michael Gardner for much of his remaining life.
The girls in the Gardner case are presumed to be more deeply affected than the girls in the drywall case, or the D.C. children who never got to play in after-school sports programs because Thomas stole money intended for their neighborhood.
But is that right? What if Moore’s children were indeed terribly emotionally scarred by their captivity in a feces-smeared room?
“The idea behind guidelines was to have relatively similar punishments for similar crimes,” Kelly says. But many judges complain guidelines make it too hard to adapt punishment to the circumstances and character of those who come before them.
Would Waffen, the archivist, have gotten a tougher sentence if he had stolen military battle plans rather than old radio tapes? Or if he had been a young man rather than a 67-year-old?
“You’d like to think the judge is considering the person before him and not the last case or the next case,” Roberts says, “but there are so many factors at play — the guidelines, community perceptions, and in corruption cases, the effort to send a message.”
Even King Solomon, whose judging, according to the Bible, caused God to call him the wisest of kings, had mainly to discern good from bad; he didn’t have to measure out his justice in months of prison.