Former Virginia governor Bob McDonnell (R) deserved to be indicted for taking thousands of dollars in gifts from a businessman seeking state help to promote his dietary supplement. He deserved to be convicted. He deserves to go to prison.
And the two-year sentence imposed Tuesday by U.S. District Judge James Spencer — a surprising downward departure from the six to eight years the judge calculated under federal sentencing guidelines — seems about right.
Sentencing in white-collar and public-corruption cases presents a puzzle. One chief rationale for incarceration — incapacitating the dangerous offender to protect society — does not apply. White-collar defendants tend to be pillars of the community, not violent criminals who need to be locked away.
Meanwhile, theories of deterrence become complicated when applied to the white-collar defendant. The perpetrator isn’t apt to be in a position to repeat the bad behavior, even if he were so inclined.
Likewise, in terms of deterring others similarly situated, the reality of prosecution and conviction alone would seem to suffice. A once-promising career is ruined; the official is disgraced; legal bills mount. For a future official contemplating taking a bribe, how does a 10-year prison term add more deterrence than two years?
But of course this argument ends up proving too much: It would mean that prison is never justified in cases of public corruption — an outcome belied by the fact that the offenses come with criminal penalties attached.
In the days leading up to McDonnell’s sentencing, this theoretical debate played out in the competing arguments by federal prosecutors and the former governor’s lawyers.
“A prison sentence is not needed to reflect the seriousness of Mr. McDonnell’s offense, promote respect for the law, afford adequate deterrence to criminal conduct, or protect the public from further crimes of the defendant,” McDonnell’s lawyers wrote, urging that he be sentenced to 6,000 hours of community service.
Federal prosecutors, by contrast, emphasized McDonnell’s high position (only the 12th governor in U.S. history to have been convicted of corruption); the seriousness of his offense; and his lack of contrition and efforts to shift blame to others, particularly his wife, Maureen.
Probation officials calculated that the sentencing guidelines called for a sentence of between 10 years 1 month and 12 years 7 months — a term prosecutors said “appropriately balances the defendant’s prior good deeds with the gravity of his criminal conduct.”
Both sides, understandably, overreached. The “he’s-been-punished enough-already” strategy, which was the focus of McDonnell’s parade of character witnesses at Tuesday’s sentencing hearing, was unconvincing. Seriously bad conduct — such as betraying your office by taking bribes — merits serious consequences.
That is not necessarily because it will deter others but because it expresses the significance that society attaches to offenses against the public trust.
At the same time, the government’s arguments for a lengthy sentence fail to take account of the complex facts underlying McDonnell’s conviction and the blurred line, especially in Virginia, between lavish gifts from a supporter and bribery.
Spencer, in upholding McDonnell’s conviction, correctly found that there was ample evidence that the governor sought to use his office to influence government decisions on behalf of Jonnie R. Williams Sr., who showered him with more than $100,000 in gifts and loans.
“McDonnell did more than just provide access to Williams; he directed his employees to take action on research and studies for [nutritional supplement] Anatabloc,” Spencer wrote. “And he did so corruptly.”
Yes, but some context is in order here, on both quid and quo.
This is not a congressman caught with blocks of cash in his freezer (former congressman William Jefferson was sentenced to 13 years) or, to bring the matter closer to home, the Virginia delegate sentenced to 9½ years for procuring a $500,000 grant for a state university in exchange for a job there.
Virginia’s gift laws, pre-McDonnell indictment, were notoriously lax. McDonnell’s actions on Williams’s behalf were neither so extensive nor so different from the favors politicians routinely perform for supporters and constituents. That does not negate the criminality that occurs when quid and quo coincide. But it ought to mitigate the severity of the sentence.
In court Tuesday, McDonnell described himself as a “heartbroken and humbled man.” I was starting to feel sorry for him, until this: “I ask that whatever mercy you might have, you grant it first to my wife, Maureen.”
A bit hard to take, given McDonnell’s “it-was-all-her-fault” defense and that he could have spared them her entirely by taking prosecutors’ one-felony plea offer.
Spencer, more judicious than I, didn’t react quite so strongly. His sentence was wise, and justified.
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