The punishments meted out this fall to junk bond financier Michael Milken and D.C. Mayor Marion Barry have called into question a cherished American belief: All it takes to beat the rap is fame or wealth.
Last month, Washington's mayor was sentenced to six months in jailfor a first-time drug possession offense -- an all but unheard of sentence for such a misdemeanor. U.S. District Court Judge Thomas Penfield Jackson made it clear that he was punishing Barry not only for the crime for which he was convicted and the crimes for which he wasn't convicted -- notably perjury -- but also because of the bad example he set for the community he was supposed to lead.
In Milken's case, U.S. District Court Judge Kimba Wood seemed to follow a similar logic. Although some of Milken's Wall Street associates committed similar misdeeds -- one even got paid for his tips with suitcases stuffed with cash -- the longest jail term any of them has faced has been four years. Yesterday, Milken, the richest and most powerful financier since J.P. Morgan, found himself facing a jail term that could span a decade.
Are judges justified in giving defendants like Barry and Milken harsher sentences than others convicted of the same crimes?
Of course, said New York University Law School professor Stephen Gillers. In both instances, he said, the philosophy behind the sentence is called "general deterrence," the occasional use of a frightening example to discourage other law breaking. In this endeavor, famous defendants make wonderful targets.
"It's easier to make an example when people are watching," Gillers said, even when "the punishment is not necessary to protect the public."
John Coffee, a professor of securities law and criminal law at Columbia University, said the cases illustrate another deeply held belief in the "higher standard."
"This notion that when you have a higher office, there's a higher standard you're held to -- that's deeply engrained," Coffee said.
The harsh sentences for Barry and Milken were not simply the result of their being well-known, however. It was also significant that both of their crimes -- illegal drug use and greedy financial manipulation -- were widely regarded as symptoms of the "Excessive '80s."
In Barry's case, the backdrop was his own city, wracked by drug crime as the mayor himself fell victim to cocaine and alcohol dependency.
For Milken, it was a country heading into a recession and benumbed by the cost to taxpayers of the failure of hundreds of savings and loans that Milken, according to the government, helped lure into ruin with the siren call of junk bonds.
The sentencing judges, while not blaming them explicitly for the drug culture or financial greed, nonetheless took note of the harm done by both men to the public.
"Your breach of public trust alone warrants an enhanced sentence," Jackson told Barry last month. Yesterday, Wood echoed those words, telling Milken that his crimes warranted "serious punishment" because he had so misused his leadership position in the financial community.
The similarities between the Milken and Barry sentences are even more striking considering that the two were sentenced under radically different rules.
Barry's case fell under the provisions of new federal sentencing guidelines that reduce much of the process to a formula and severely limit the judge's discretion. Milken's crimes were committed before the new rules went into effect, giving Wood considerable leeway in fashioning her punishment.
Under the guidelines, Jackson had the authority to consider the evidence offered by prosecutors of other crimes for which the jury could not reach a verdict -- notably the charge of lying to a federal grand jury. Jackson used that evidence to justify a higher prison term than might have been justified by the conviction on the mere misdemeanor possession count.
In Milken's case, the judge was bound by no such rules. But the sentence she gave him bears a rough resemblance to the sentence Milken would have received had he been sentenced under the guidelines.
According to Paul Martin, a spokesman for the U.S. Sentencing Commission, that would have been 6 1/2 years, at a minimum. Under the old rules, Milken gets one-third of his prison term off for "good time" right from the start, which means he will serve a maximum of 6 1/2 years.
Take away two points from this pair of high profile criminal cases.
First, judges can still bend the sentencing rules to make examples of celebrity defendants. And second, being rich may help you hire a good lawyer to beat the rap, but if you're convicted, it pays to be anonymous.