Under the terms of a plea agreement, the prosecution and the defense recommended that Judge Stephen C. Robinson sentence Mr. Kerik to 27 to 33 months in prison. But the judge departed from the sentencing recommendations, giving Mr. Kerik a longer sentence because he said he had betrayed the public’s trust.

“I think it’s fair to say that with great power comes great responsibility and great consequences,” Judge Robinson said. “I think the damage caused by Mr. Kerik is in some ways immeasurable.”

While I find myself surprised to write this, the additional 15 months above the top of the guidelines makes little sense.  It’s not as if the extra time will have any general deterrent impact on anyone holding, or seeking to hold, high office in law enforcement.  The conviction itself, and resultant ruination of his reputation and future, is as strong a deterrent as anyone in such a position will need to think twice, if they are so inclined.  And if they aren’t so inclined, 15 more months isn’t going to change them.

While the judge’s observation, that Kerik betrayed the public’s trust, is indisputable, that was a given from the plea itself.  This was incorporated in the plea, and had Bernie not been a high-flier in law enforcement, chances are essentially non-existent that he would have found himself in the dock to begin with.  The higher one flies, the farther the fall.  Bernie fell long and hard.

So the question is what about the consequences, the addition of 15 months over the guidelines sentence as spelled out in the plea agreement, served a legitimate sentencing function.  I don’t see anything.  The seems like piling on, and in a rather trivial way at that.  If Judge Robinson wanted to make a big point of it, add another 5 years to the sentence, not 15 months.  Sure, another 5 years would certainly seem to exceed that which was necessary to satisfy the requirements of 18 USC 3553, but then so does 15 months.

Had Bernie Kerik been sentenced to the top of the guidelines, the only commentary would have been to note that no one is entitled to the low end, and Bernie knew what he was facing when he signed off.  But this serves as a reminder when entering into a plea agreement, even one as heavily negotiated as this one must have been, that when it says that it does not bind the judge’s hand at sentence, it means it. 

As for Judge Robinson’s explanation for his upward departure, there’s no platitude that one can disagree with, and yet nothing that wasn’t obviously the case at the time of the plea.  If the court saw the guidelines sentence in the plea agreement as inadequate, that should have been made clear up front rather than leave the defendant open for ambush at sentence.  I understand Judge Robinson’s rationale, but it shouldn’t have come down that way.  Even Bernie Kerik deserves an appropriate sentence, and that sentence should have been no greater than the top of the guidelines.