An Honest Question: What Role Should 18 USC § 3553(a) “General Deterrence” Play In Mr. Shkreli’s (CEO) Sentencing?

I saw this Forbes piece, as a link, through one of Christie Smythe’s tweets. Just full disclosure there. Smile.

I think it is painfully clear that she is thinking (and likely already writing up a draft chapter or two?) about the “shall consider” requirements of the lead in to 18 USC § 3553(a), or “general deterrence” — as it applies to Marty’s circumstances.

Here’s the Forbes bit — commenting on the Silk Road life sentence (murder for hire was alleged — thus a life sentence):

…[Several] 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….

We should note that in numerous pre- and post- verdict media interviews (many linked here in comments), Mr. Shkreli had been almost uniformly dismissive of (and occasionally expressed his open contempt for) the legitimacy of the court, of the prosecution… and most tellingly, the purpose of the federal criminal laws under which he has  been ultimately convicted — thrice.

Feel free to offer your opinions — let’s discuss whether it is fair, or just to the convicted felon, to have to pay in years to serve as an example, to others who might travel his path —  and whether we think others will actually be deterred from the sorts of criminal financial frauds Mr. Shkreli committed,  by a long sentence here (in sharp contrast to his “zero to six months” at a club fed facility predictions), and whether we would like to see changes in the law — the sentencing guidelines.

In doing so, please do take adequate notice (per the banner over this post) of the fact that society has a particularly keen interest in ensuring and incentivizing the honesty of public company CEOs — the entire notion of our capital markets requires that public company CEOs be scrupulously honest, and above reproach. [Many of the frauds they might decide to engineer, especially in private and alone, likely cannot be uncovered using normal forensic methods, so we must rely on their complete honesty, for the markets to function efficiently.] Note also that Marty was one — a public company CEO of at least two companies; not just a private hedge fund trader (i.e., a pirate rules guy).

Please understand — I think several aspects of the guidelines, including this “notoriety” one tend to work random and harsh penalties — with at least some convicted felons. I am no fan.

But I am also keenly interested in accurately predicting Marty’s sentence. In this regard, I will note that he will likely have served almost a half year in relatively harsh conditions (i.e., not club fed) by the time he hears his sentence on the actual felonies of which he was convicted.

Will being over four months stuck in a can — somewhere even he says is “to be avoided” — going to have meaningfully changed his attitude and demeanor come mid-January 2018?

And even if so, shouldn’t he still be sentenced to what the guidelines require?

The comment box is open now — feel free! Please accept, one and all, that some commenters will wish to tell us how unfair the system is. Please accept that I agree with them, in large part.

Let’s get all opinions out on the table… and please do try to back your opinions with logical arguments… rather than invective. Thanks!

Namaste…