Should defendants in cases that attract press coverage be given longer sentences than defendants in cases that pass unnoticed? The knee jerk response of anyone familiar with the basic principle of equality under the law would likely be a resounding “no.” And yet, as some recent cases have starkly demonstrated, courts can and do consider a defendant’s level of notoriety as a factor weighing in favor of harsher punishment.
The ability of courts to take publicity into account at sentencing traces back to Section 3553(a) of Title 18, United States Code, which provides a list of factors that district courts are required to consider in imposing sentence, including “the nature and circumstances of the offense and the history and characteristics of the defendant.” One of the factors district courts must consider is “the need for the sentence imposed—to afford adequate deterrence to criminal conduct.”
Courts have long interpreted this provision of Section 3553(a) to require consideration of both the need for “specific deterrence” as well as the need for “general deterrence.” As U.S. District Judge Jack B. Weinstein recently wrote, “specific deterrence” is the extent to which a sentence will “persuade [the] defendant to resist further criminal behavior,” while “[t]he theory of general deterrence is that imposing a penalty on one person will demonstrate to others the costs of committing a crime, thus discouraging criminal behavior” in the community.
The extent of publicity a case has received and will continue to receive naturally figures into the analysis of whether a given sentence will further the goal of general deterrence. As one commentator wrote some time ago, “[i]f a case has for some reason attracted great publicity, a severe sentence could be expected to have great deterrent effect. If, on the other hand, the publicity is minimal and the sentence probably will be known only to the defendant himself and the officials involved with the case, the judge could let the offender off with a light sentence without sacrificing any general preventive effects.”
As evidenced by some recent cases, courts have generally followed through on this reasoning and have considered the extent of a case’s publicity as one factor weighing in favor of higher sentences. In Ross Ulbricht’s appeal of his conviction for crimes “associated with his creation and operation of an online marketplace known as Silk Road,” the Second Circuit Court of Appeals condoned the district court’s consideration of the extent of the case’s publicity as one factor justifying the life sentence imposed. Specifically, the Second Circuit approved the district court’s reference to the general deterrence that would result from the “unusually large amount of public interest” in the case. (Ironically, it appears that Ulbricht’s life sentence and the attendant publicity, far from deterring crime, “actually boosted dark web drug sales.”)
By the same token, in sentencing former congressman Anthony Weiner to 21 months’ imprisonment for transferring obscene materials to a minor, U.S. District Judge Denise L. Cote made express reference to Mr. Weiner’s high profile: “Because of the defendant’s notoriety, gained well before he engaged in this criminal activity, there is intense interest in this prosecution, in his plea, and his sentence, and so there is the opportunity to make a statement that could protect other minors,” she said. Judge Cote elaborated that, “[g]eneral deterrence is a very significant factor in this sentence.”
Courts, commentators, and the defense bar have made numerous arguments over the years questioning the weight general deterrence should receive as a sentencing factor. For example, in a recent opinion, Judge Weinstein examined expert research showing that there is little reliable evidence that longer sentences have a general deterrent effect, at least for gun crimes, and concluded that “imposing a long incarcerative sentence” in a gun case “in order to deter future gun violence by members of the community seems futile.” Similarly, in a recent article, law professor Peter J. Henning looked at the concept of general deterrence in white-collar cases, writing that “[i]t is certainly questionable whether a punishment imposed on one white-collar criminal has an impact on others because the violations are usually the product of a unique set of circumstances that allowed the crime to occur, and the offenders often do not believe they engaged in wrongdoing that needs to be deterred.” And more broadly (see here and here), “[t]he principled arguments against general deterrence are well known – it is unfair to impose a disproportionately harsh sentence on one offender in order to deter others from committing a similar offence.”