Remember deterrence in sentences
A lawyer for Nicholas J. Polito said after the former investment broker's guilty plea Thursday that the plea "is another step in my client's process in accepting responsibility for the mistakes he made."
The problem, however, is that no mistakes were involved. Mr. Polito, 65, deliberately forged his clients' names on checks and deposited more than $500,000 of their money into his own accounts.
Yet the U.S. attorney has agreed to a plea deal that emphasizes restitution and does not recommend a specific prison term. That is a mistake.
Restitution is, of course, very important to the victims. It's their money. But deterrence also should be the objective of the exercise, and the vague plea deal leaves open the question of whether that objective will be met.
If Mr. Polito makes full restitution by the time of his sentencing in January, prosecutors will recommend that Senior U.S. District Judge A. Richard Caputo impose the minimum sentence under federal guidelines, which is not defined in the plea agreement. According to Mr. Polito's lawyer, however, a sentence could be as minimal as probation.
The maximum sentence, which the federal prosecutor could recommend if Mr. Polito does not make restitution, is 30 years in prison and a $1 million fine.
In effect, the plea deal pivots on restitution. But that alone is inadequate to address the crime. The bank robber doesn't get to return the money and walk away; a drug-addled thug doesn't get a free pass if he gives the money back to the convenience store he hit.
That's because crimes are not just against the individual victims, but society, and society has a deep interest in deterring such criminal conduct.
Judges rely not just on guidelines and prosecutors' recommendations, but on detailed investigations by probation officers who "score" cases to try to frame potential exposure for those convicted. Ideally, judges in white-collar cases such as Mr. Polito's assign high value to deterrence.