Chandra Bozelko is a criminal-justice columnist with GateHouse Media.
An earlier version of this op-ed misstated the crime to which Felicity Huffman pleaded guilty. She pleaded guilty to conspiring to commit mail fraud and honest services mail fraud. This version has been updated throughout.
I’m intimately familiar with McDowell’s case: I was incarcerated with her. But as a white Princeton University graduate, I got a sentence of similar length for 13 felony convictions (they remain under post-conviction review). And while I understand the frustration about these disparities, I’m glad Huffman got a lenient sentence. When leveraged properly, it could set a precedent that could free a lot of people and get others more humane and appropriate sentences in the first place.
It’s a fact, not an argument, that the criminal legal system operates in two tiers: which one you’re sorted into is determined by melanin and income. According to research from the U.S. Sentencing Commission, between 2012 and 2016, black men received sentences that were 19.1 percent longer than those imposed on white men in federal courts, and they were 21.2 percent less likely to receive a sentence that revised the sentencing guidelines downward. Though the study didn’t specifically examine the wealth or income of these defendants, other research suggests that poor black men are far more likely to head to prison than wealthier black men.
One response to these numbers is to seek harsher punishment for people blessed by judicial forbearance; in this case, that would mean a harsher sentence for Huffman. But when we try to cure disparities by simply incarcerating more white, or wealthier , defendants, the entire population ends up getting punished more severely. A study conducted by the sentencing commission found that a decline in racial disparities in sentencing has been driven not by shorter sentences for everyone but by more people being sentenced to longer periods under mandatory minimum sentencing guidelines. If our sole goal is to reduce disparities, we can lock up the Huffmans of the world more often and for longer. But that doesn’t provide any relief to a poor, black inmate whose freedom was felled by structural racism.
Instead, we need to start using sentences such as Huffman’s to get less-privileged people the same justice.
That’s exactly what public defenders in Clark County, Nev., are doing. Instead of getting surly and resentful at a rich person’s break, they got busy trying to get the same deal for their clients when Henry T. Nicholas III, the billionaire Broadcom founder, entered an “Alford plea” in response to two felony drug counts last month. Like Huffman’s, Nicholas’s sentence was merciful in the extreme. Neither he nor the woman who was arrested with him would get prison time. Instead, they each had to complete 250 hours of community service and make a $500,000 charitable contribution. Taken together, that $1 million is about one hundredth of a percent of Nicholas’s net worth.
Now these defenders of the indigent are drafting boilerplate motions for each of their clients asking for the same deal: a reduction in sentence without having to post bond and an exactly identical donation, 0.0128 percent of the defendant’s net worth. In financial terms, almost all clients of public defenders have a net worth of zero. But their human worth deserves equal protection.
It’s too early to know if the Clark County defenders will persuade lower-court judges to go along with their pleas for equal leniency. If nothing else, they’re trying to establish an objective measure that can be used for appellate purposes or to grade judicial performance.
It can’t hurt if other attorneys copy the strategy while we wait. If they’re offended by Huffman’s sentence, Federal Defenders, the program that appoints counsel for indigent defendants in federal court, should try the same plan as the Nevada lawyers. It’s not clear how many people are currently incarcerated for the crimes to which Huffman pleaded guilty, but Huffman was originally charged with conspiracy, and black people are disproportionately charged with and sentenced for that crime. I think they should get a Huffman special, too.