Sentencing of the “Varsity Blues” Defendants — An Incredible Opportunity to Benefit our Communities

Without question, the sentencing of the defendants in the “Varsity Blues” case is going to be controversial. The case involves dozens of well-heeled defendants and there will undoubtedly be calls to put these individuals behind bars for a variety of reasons including punishment, deterrence, anger, envy and a plethora of others. U.S. Attorney Andrew Lelling is reportedly asking for prison time for all the defendants—months for those who pled early and years for those whom he petulantly added the money laundering charges.

All because of an ill-conceived attempt by parents to do better for their children.

An irony of the case is that the “kingpin,” Rick Singer, who put this scheme together and promoted it to these people over the years, will get a reduced sentence because he cooperated and implicated all of the people who either paid him, his consultants who steered them to corrupt coaches and test takers, or donated to his phony foundation. It is reminiscent of the history of drug prosecutions in this country where the mastermind of the organization gets caught and cooperates against all of his underlings. He has a treasure trove of information to offer. The underlings have nothing to offer the government, no one to snitch on, so they get a harsh sentence and the ringleader gets a lighter sentence.

Having worked for over 40 years in the sentencing of white collar defendants, and having devised creative alternative sentences for hundreds of individuals, I am hoping the Federal judges involved in these cases can look beyond the hype and hysteria associated with them. If they can, they have the opportunity to create what would amount to the equivalent of a Marshall Plan for literally dozens of communities across our country. For those who do not remember, the Marshall Plan was a highly successful initiative following World War II to rebuild war-torn communities in Europe. We certainly have war-torn cities and communities all across our country, and I suggest that the individuals involved in these cases could dedicate their incredible talents and resources to assist a variety of causes.

These defendants are all nonviolent, first offenders and our overcrowded federal prison system certainly does not need them to wash dishes or mow lawns at a cost of $25,000 per inmate per year. Alternative sentences using probation, substantial community service sanctions and other non-prison options are not hard to imagine. I have placed first offenders in agencies that serve disabled children, in distressed inner city schools and other programs that assist men and women returning from prison. Over the past four decades, we have helped countless social service and nonprofit agencies fulfill their missions through placement of defendants in community service positions. These defendants have significant backgrounds, experiences and resources that could benefit thousands of individuals.

The Administrative Office of the United States Court system recently addressed the value of using community service. “Community service addresses the traditional sentencing goals of punishment, reparation, restitution and rehabilitation…It restricts offenders’ personal liberty,…allows offenders to atone [and]…may be regarded as a form of symbolic restitution when the community is the victim.”

These defendants have pled guilty, have accepted responsibility and have suffered enormous collateral consequences. Careers have been upended, reputations destroyed and all of these individuals have suffered intense public humiliation, both in their own communities and nationally. They will forever carry the brand of “convicted felon.” In addition, they will be permanently mindful of the victims in this case — not only their own children, but also the students who were denied admission due to the preferential treatment they bought.

This is not an argument against punishment for someone who has committed a crime. Rather, it is about the right type of punishment. Contrary to some public opinion, a sentence of probation with conditions is not the proverbial “slap on the wrist.” In a Supreme Court case, the Judges took pains to point out that a sentence of probation constitutes significant punishment. The Court held:

We recognize that custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty….Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases, receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, and refrain from associating with any person convicted of a felony, [etc.]. Most probationers are also subject to individual “special conditions” imposed by the Court.

Using alternative sentences could help restore communities across our country without compromising the criminal justice system. Let’s hope the Judges in these cases consider this and impose sentences that can provide much needed resources to distressed communities.