Prosecutor: Better Than A Good Night’s Sleep

Recently, I posted about a very controversial sentence imposed on a mother who beat a man with a bat because he was listed as a sex offender.  Lawyers were appalled.  Mothers were delighted.  On the heels of Tammy Gibson’s three months comes Anthony Cappuccio’s home detention.  It seems that Cappuccio abused his position as a church youth leader:

[Cappuccio] provided alcohol and smoked pot with some of the teens at concerts, then let them drive home. He engaged in a lengthy sexual relationship with one of the boys. He viewed pornographic images of young males on his office computer. He cheated on his pregnant wife, once cutting short a vacation for a rendezvous with the teen boy….

It might seem to some that he was a prime candidate for Tammy Gibson’s bat, right?  Yet not only did Cappuccio not get a good beating, but he was allowed to serve his 3 to 23 month sentence on house arrest.  Did I mention that Cappuccio was a prosecutor? Hence, sentencing maven Doug Berman’s question: Do prosecutors gone bad often get breaks at sentencing?

The answer, it seems, is a very loud and clear “yes”.  It seems to be very helpful to have friends in the system, and far more painful for those friends to impose a sentence even approaching what an outsider might receive.  Consider another prosecutor, this one working in one of the most serious United States Attorney’s offices in the country in a District known for its lack of mercy and harsh sentences, Daniel Perlmutter.

A former Federal prosecutor was sentenced to a three-year prison term yesterday for stealing drugs and cash from the United States Attorney’s office in Manhattan.

The sentence was imposed on Daniel N. Perlmutter, who had pleaded guilty in October to taking $41,800 and five pounds of drugs from the office while working there as a prosecutor. He was arrested and fired when the theft was discovered last May.

Judge Charles E. Stewart Jr., calling it a particularly difficult sentence, imposed the prison term and five years of probation on Mr. Perlmutter, who will be eligible for parole after one year in prison.

The judge said the requisite words that Perlmutter had disgraced his office.  Perlmutter said the requisite words that he disgraced his officer.  Consider all those drug mules doing 10 year mandatory minimum sentences out of the Southern District of New York, and ask yourself, did Perlmutter get off easy?

Rudolph W. Giuliani, the United States Attorney for the Southern District, which includes Manhattan, said later that 12 years would have been the ”appropriate sentence” in view of Mr. Perlmutter’s ”personal betrayal” of his office and colleagues.

Never one to miss an opportunity at self-aggrandizement, Rudy ignored the fact that the maximum was 10 years.  But that aside, the sentence imposed on Dan was shockingly light. 

Conceptually, a prosecutor who commits a crime inherently commits two offenses to society.  The first is the crime itself, or in Cappuccio’s case, many crimes against boys who were placed in his care as a church youth leader.  The second is the violation of his oath, of the power and trust placed in him as a prosecutor.  It would seem that he should receive a sentence of sufficient severity to reflect both wrongs.  Instead, we see the role that connection plays in the sense of what constitutes an appropriate punishment, how a judge “feels” about the person standing before him for sentence.

Just yesterday, I submitted a very substantial pre-sentence memorandum to the court in a case coming up for sentence.  After reading it, my client thought it was great, but asked me the relevant question.  “Do you think it’s going to make a difference?”  I told him that I hoped it would, that it should, that it was something we had to do in order to make the judge understand and appreciate the propriety of the sentence on this particular human being.  But I then told him, “Of course, I would trade it off in an instant if I could guarantee that the judge gets a good night’s sleep the night before.”

So do prosecutors who commit crimes get a break?  You betcha.  It’s even better than a good night’s sleep.