A friend of mine committed a crime and is now confined in a so-called “minimum security federal prison camp” that is experiencing a COVID-19 outbreak.
My friend’s crime was failing to file certain disclosure documents with the Securities and Exchange Commission. A tax lawyer, he was representing a client who was taking a company public. Perhaps naively, he didn’t realize that this client was actually masterminding a pump-and-dump scheme that could have harmed many investors. Even though my friend was the least culpable of all the accused in the case, he got the longest sentence: fifteen months. The scam’s mastermind got a shorter sentence in exchange for cooperating in another case. The third defendant, an attorney like my friend, was given probation by a different judge.
My friend, whom I’ve known for three decades, is as kind and considerate as anyone I know, and he has a gentle, infectious sense of humor. Married for sixteen years, he dotes on his and his wife’s four delightful young children.
He got caught up in his client’s scam during a time of personal and professional stress when he and I weren’t in our usual close touch. Although he was arrested in May 2018, it was only after he entered a plea many months later that he was allowed to tell me what had happened. I was shaken, and he was acutely embarrassed. But he didn’t flinch from the truth. He acknowledged the conduct charged against him and that it was rightly deemed a crime. I felt sure his remorse was genuine.
At this point, one is supposed to say that this brief background may help explain but doesn’t justify. True. But I reflect back on actions I regret that I did during times of stress in my own life. The difference might be as simple as that I did nothing the law would punish.
In my letter to the sentencing judge, I referred to the conversations I had long ago with Jim Clark, rector of Grace Episcopal Church in Amherst, Massachusetts. I remember Jim explaining that the Greek word behind our “sin” means to wander from the path. As I wrote to the judge, my friend’s conduct was out of character, a wandering from his otherwise principled path.
The prosecutor urged a sentence of four months, and my friend’s lawyers argued for home confinement because of the COVID-19 pandemic. Rejecting both requests, the judge imposed a fifteen-month sentence to be served in prison, notwithstanding the evidence presented by my friend’s lawyers of the risk of infection.
The judge explained that he was imposing a harsh sentence because my friend had been acting in his capacity as a lawyer when he broke the law. Fair enough. But despite all the jokes, even lawyers are humans. We aren’t automatons. My friend had already suffered grave consequences as a result of his guilty plea. He had to give up his license to practice law and the resulting income. He’d endured a two-year purgatory while his case proceeded from arrest to sentencing. His excellent reputation was tarnished. Perhaps most difficult, he has had to explain himself to his wife and children, knowing that one day he will need to be more specific when the children grow old enough to understand.
Do I think my friend deserved to suffer consequences from his flouting of rules designed to protect investors? Sadly, yes. Did he deserve a greater punishment than that urged by his prosecutors, who knew all the facts and had worked closely with him for fully two years? No. Indeed, I believe my friend’s lawyers correctly argued for home confinement instead of imprisonment.
White-collar crime can do as much damage as, say, bank robbery, the difference being that white-collar criminals needn’t resort to physical violence to achieve their objectives. However, this parallel falls flat when we consider how dangerous even minimum-security prisons can be in this pandemic era. If my friend were a violent offender, one could argue that although imprisonment would expose him to the risk of a deadly infection, society would be spared the greater harm he could do to others. But he isn’t violent. He is not a risk to society. The justice system has imposed a potential death sentence on a man who had no previous criminal record and whose offense was nonviolent.
The day before my friend reported to the prison, I emailed a message of support. Here’s his complete reply, sent late that same evening:
Thank you, Adrian. To appreciate the peaks, one must sometimes walk through the valley. I shall use this time to hopefully achieve something better.
I found this email wrenching because, in my view, he’d already walked long enough through that valley.
Five weeks have passed since his incarceration. As the U.S. Bureau of Prisons now requires, he had to serve the first two weeks in quarantine. Then, reassigned to the prison’s general population, he was given a cellmate who had just shared a cell with a prisoner who had tested positive for COVID–19. No surprise, within days my friend also tested positive. Now he’s back in quarantine. In the case of this facility, quarantine turns out to mean confinement in the former gym, along with fourteen other men who have tested positive. So far, most of them, including my friend, have minor symptoms. However, one has a severe cough and gastro-intestinal problems. I hope my friend’s symptoms don’t worsen, but I can’t help but worry when he’s locked up in a place where punishment, not healthcare, is the priority.
There are so many prisoners around the United States in similar circumstances. My friend’s predicament makes me even more conscious of their collective suffering.
Although he cannot yet have contact with outsiders like me, he is in touch with his wife, children and lawyer. I conclude with a paragraph in an email his wife wrote to me. Her words speak more about this tragedy than mine ever could:
Unfortunately he tested positive for COVID on Friday. It is hard for me to talk about because I am just furious. They put him in a room with a guy whose roommate tested positive. They basically gave it to him. He is just fine (tired and a sore throat but that’s it) but I am so angry. Feeling helpless is possibly the worst part. I am a doer and a problem solver. But in this instance I can do nothing.