MICHAEL DEAVER, who will be sentenced in Washington next month, faces up to 15 years in prison on three counts of perjury. But Deaver may rest assured that he will not be behind bars in the year 2000. It is far more likely that he will re-emerge, fit and tanned, in time to arrange photo opportunities for the 1990 midterm elections.
Deaver can take heart from the example of Ivan Boesky, the rogue arbitrageur who stole upwards of $200 million and may have even contributed to investors' loss of confidence in Wall Street. For his troubles, Boesky pled guilty to a single five-year count, received a three-year sentence from a judge pre-selected for leniency by agreement between defense lawyers and prosecutors, and will likely serve about a year or two at Lompoc, a "Level-1" minimum security prison in southern California featuring tennis and gardening opportunities.
All sides greeted the Boesky sentence with approval. Prosecutor Rudolph Giuliani, who is building a Dewey-like political career as a tough prosecutor, termed the penalty "a heavy sentence" and "a very wise decision." Sentencing Judge Morris Lasker believed the sentence would "send a message" to the financial community. Even Boesky himself described the sentence as "fair."
In the same week that Boesky received news of his sentence, a local PCP dealer was sentenced to 45 years in prison without parole. One need not downplay the social danger posed by drugs to question whether a small time dealer's wrongdoing is 15 times worse than that of Boesky, the Nicky Barnes of insider traders.
At a time when the United States puts more people in jail and for longer periods of time than any developed nation except South Africa, white collar criminals are, relatively speaking, getting away with murder. At the same time, blue collar criminals, the violent or drug-related offenders, are punished with savage rage.
The debate about this dual system of punishment has gone out of intellectual fashion. Although violent crime rates have actually declined, the Reagan Justice Department continues to focus its efforts on drugs and crime in the streets. There appears to be little anxiety about having behind bars a country within a country, a burgeoning prison population of over half a million overwhelmingly poor, overwhelmingly black people. Yet no moral panic has greeted a simultaneous crime wave of virtually unparallelled scope and effect: the wave of white collar crime.
A rational and fair system of criminal justice must operate under a principle of proportionality. Criminal sentences are administered in a single currency -- terms of years -- and those terms should reflect the relative social harms imposed by each offender.
Our current system of criminal sentencing blatantly violates this principle of proportionality. At every step in the process the system is geared to vent its fury on the poor, the uneducated and the non-white. The white collar criminal, no matter how substantial or how damaging his actions, will receive easy treatment. This outcome is not accidental. The people who design and administer this system have constructed it in such a way that the criminals most like them will -- relatively -- prosper in that system and the criminals least like them will bear its brunt.
The disparity begins with statutory sentences. Deaver and Boesky, for example, were each convicted on counts that provide for a maximum sentence of five years. A dealer sentenced under the new drug laws can receive a 45 year sentence. What this differential reflects is a judgment that the undermining of public confidence in the marketplace or in democratic institutions is trivial when compared with violent or drug-related crime.
Violence and drugs are special. The outrage felt by victims of violent crime is real and deserving of sympathy and respect. And some, though not all, violent criminals pose a real threat to future victims. Yet what seems most to animate the public reaction to violence is a collective sense that the victim or any of us could have been killed by the assailant. It is this aftershock that drives victims, prosecutors and, most significantly, legislators who launch their election-year wars on crime by enhancing yet again the penalties for violent offenses. The punishment for what might have been but wasn't is unique in the criminal law.
Drugs are also treated with a severity that borders on the hysterical. Yet the penalty structure has always made sharp divisions between the urban ethnic dealers and their ultimate consumers who are more widely dispersed across the social spectrum. When marijuana use was confined to beatniks and jazz musicians in the 50's, the penalties for possession were draconian. When it became the recreational drug of choice for a later generation of middle class youth, use was decriminalized, although large scale dealing continued to be punished. Similarly, the migration of cocaine from the streets of Anacostia to the salons of Georgetown wrought a major change in the treatment of possession crimes.
These disparities in statutory penalties are exacerbated by our system of criminal prosecution. It is an axiom of white-collar criminal practice that you always want to be the first one into the U.S. attorney's office. The interests of prosecutor and defense lawyer converge once it is clear the government has the goods on the client. For the defendant who "turns" early, the rewards can be great, not because prosecutors reward contrition -- the client has already been caught -- but because a cooperating witness eliminates the need to continue an investigation or prepare for a complex jury trial. In addition, the cooperating witness can set off a chain reaction as each smaller fish implicates the larger fish up to the kingpin of the criminal venture. The prosecutor trades leniency in exchange for less work and more convictions.
As the Boesky plea illustrates, this imperative of accumulating convictions may be achieved at the expense of equity in the system. Boesky did not come in from the cold because of a guilty conscience. He had been fingered by Dennis Levine; his records had been subpoenaed. His lawyers, themselves both former high officials at the Securities and Exchange Commission, knew that the time had come to make their best deal. Boesky agreed to tell all and to wear a wire. The great white shark would implicate the tuna in exchange for concessions. The prosecution showed its gratitude in its plea agreement.
Plea bargaining is an endemic feature in all criminal courts. Blue collar criminals, however, have far less to offer and consequently are offered far less by prosecutors. It does not require a long and complex investigation or close inspection of millions of documents to obtain an indictment or conviction in a robbery or drug case. In addition, most blue collar cases do not involve criminal networks. Often the blue collar offender has no one to turn in but himself. Finally, the blue collar offender will not have a former S.E.C. general counsel to deal with the S.E.C. Unlike Ivan Boesky, his plea bargain is a take-it-or-leave-it deal, not a customized one.
Having obtained a great plea bargain to a single five-year count, why did Ivan Boesky then get only three years, 40 percent off what was already a fire sale price? The explanation rests in part on penal policy and in part on an unarticulated premise about the differential nature of suffering.
Ivan Boesky did not need to be locked up to deter him from doing the same thing again. Nor does he need to bekept off the streets to put at least a temporary halt to his criminal career. Nor does Boesky need a long jail term for rehabilitation.
But these penological principles cannot fully explain why white collar offenders like Boesky are on a different tariff. Judge Lasker noted that "there is no doubt that Boesky has been humiliated, vilified and cut down to size in a degree rarely heard of in the life of a person who was once regarded favorably as a celebrity." Boesky's sentencing memo spoke of the "devastating price" he has paid, the humiliation of his children, his bar from the securities industry or legal practice, the loss of his wealth, his rejection by friends and the philanthropies he supported (probably with stolen money). Boesky's now-rejecting friends and charities, however, could still be employed to help his cause. Songwriters Sammy Cahn and Jule Styne wrote letters on his behalf. Shakespeare producer Joseph Papp wrote, "As Marc Antony found Caesar, I found Boesky faithful and just in his dealings with me."
The premise, apparently accepted by Judge Lasker, is that the fall from a lofty position is so devastating that the addition of a long prison term would be cruel or inhumane. White collar offenders also speak of the stigma and strain of prison life.
The unspoken corollaries to these propositions are that those who do not begin with power and position have not really suffered until they are sentenced and that imprisonment is not as devastating given the modesty of their circumstances. These unarticulated premises are pervasive and pernicious. That an individual with position and power has abused those advantages should call for greater punishment rather than mercy. That many ghetto-dwellers live in prison-like surroundings should lend less rather than more moral comfort to their jailers.
White collar criminals are more like prosecutors and judges than blue collar criminals. They look respectable in court and have been coached to say the right things. Powerful people will write letters and testify on their behalf. Judges can empathize with their fall and be touched by the brave support of well turned out wives and families.
Most blue collar criminals will strike no such chords. They'll wear the wrong clothes and will not be able to articulate their remorse in the argot of lawyers and judges. There will be no stretch limousines lost or supportive character witnesses. There will be no ostracism at the racquet club or lost seats on the stock exchange or long-suffering spouses. There will be no anxiety that this person lacks the constitution to cope with incarceration. For all of these things, the blue collar criminal will be additionally punished.
A humane system of criminal justice must be chary in administering suffering. Our current two-tiered system has empathy with the fallen only when those who administer the system can identify with the plight of the offender. Jail sentences are in the main already far too long. But equity requires that in every case there is inflicted a proportional, just measure of pain.
Eric Lewis is a Washington attorney who teaches criminal law at Georgetown University Law Center.