Vick's Sentence Too Long

Twenty-three months in a federal prison without the possibility of parole.

That's a harsh sentence for Michael Vick. The federal sentencing guidelines provide for lesser presumptive sentences for conduct that seems at least equally serious, if not more serious. For example, a lower base punishment is prescribed for an aggravated assault against another human being, which means a felonious assault with a dangerous weapon leading to serious bodily injury. Similarly, a lower presumptive sentence is provided for the crime of abusive sexual contact, defined as "causing sexual contact with another person by threatening or placing the vicitim in fear." Now, to be clear, these penalties are presumptive baselines only, and the guidelines allow plenty of room for upward enhancements to reflect serious behavior or consequences. My only point in this paragraph is to make clear that, even under the generally stiff federal guidelines, Vick's sentence is very substantial.

Vick is guilty of a serious crime, and his sentence reflects that seriousness. But it is too harsh? Is the penalty too great, given Vick's conduct? Yes, it is. Vick's sentence should have been lesser, not greater, than that of his co-conspirators. Twenty-three months' imprisonment is just too much. Here's why:

1. It is the dirty secret of criminal sentencing that an offender's criminal sentence is not derived solely from the offender's criminal conduct. Offenders are also sentenced for their non-criminal, legal conduct. Sound crazy? In my view, it is. Vick's sentence can be (and apparently was) increased because Vick failed to "accept responsibility" adequately for his conduct. Even assuming that's true in this case (Vick did, after all, plead guilty and thus formally accept the prosecution's charges: how much more "acceptance" do we need?), what that means is that Vick was given additional imprisonment for not being cooperative and for having a bad attitude in his dealings with the police and prosecution. I thought we citizens have a constitutional right to fight charges and not cooperate? What if Vick had committed the ultimate act of uncooperation: pleading innocent and putting the government to its proof at trial? Could Vick be sentenced for invoking his constitutional right to a trial by jury? You bet: the guidelines provide for about a six-month term of imprisonment for exercising one's constitutional rights.

2. The answer to my concern is to cite to the accepted practice of plea bargaining: it is routine, the argument runs, that offenders plead guilty to lesser charges or enter into sentence agreements, and do so in expectation of reduced sentences. In other words, it is common that
offenders trade off their constitutional right to be "uncooperative" (and stand trial) in exchange for a reduced sentence. Just because one can plausibly characterize this trade the other way (as offenders getting enhanced sentences for exercising constitutional rights), although semantically correct, is disingenuous, as it overlooks the essentially voluntary nature of the transaction. Thus my position is ultimately demagogic, as the offender is not "sentenced" for exercising constitutional rights; he's merely not given a sentencing reduction for relinquishing his rights.

3. The problem with this standard position is twofold. One, it makes the criminal sentence into currency. The offender must risk an enhanced period of incarceration should he wish to exercise his rights; no other means of "payment" for standing trial is possible. In Vick's case, if Vick preferred to fight his charges, to be uncooperative, then he must pay in increased time. Why couldn't Vick have been allowed to use another currency, like say legal tender? What if Vick, a wealthy man, offered to pay the prosecution's expenses should he be found guilty after a trial? Could the prosecution still complain about Vick's refusal to plead and about the cost of putting the government to its proof? The prosecution should not always be able to condition sentencing breaks on a defendant's willingness to forgo his constitutional rights.

4. Second, conditioning sentencing on "acceptance of responsibility" is ineluctably subjective. Here, remember, Vick plead guilty. The government did not have to prove its case; Vick saved the government that expense. Nevertheless, the prosecutor and judge decided that Vick was guilty, not of animal cruelty, but of being uncooperative. No proof beyond a reasonable doubt was necessarily adduced to establish this latter contention, and no jury ever weighed the prosecution's perceptions against Vick's reasons or explanations for his apparent lack of cooperation. The prosecutor refused to recommend a sentence reduction for cooperation, the judge agreed (presumably according to the lessened "preponderance of the evidence" standard of proof), and that's it: Vick gets added terms of imprisonment for his post-crime, post-indictment conduct. (The alleged failed drug test and alleged lies fall in the same category.) Why should the prosecutor, Vick's nominal opponent in this adversarial system, have it within his discretion to add to Vick's sentence? How reluctant would any criminal defendant be to fight charges knowing that, by the simple act of fighting the charges, one's adversary can unilaterally decide to increase the punishment? In the civil system, which handles less serious, non-criminal disputes, no adversary has any such power over his opponent. In this less-serious branch of the law, each side pays for his own counsel fees, regardless of the trial outcome. Why should our most serious branch of the law, the criminal law, feature a system where the loser pays, as long as the loser is the citizen charged with a crime? (The government does not pay if the defendant is acquitted.) And why must that payment be in terms of a period of one's life, and not something else, like money?

5. Vick's sentence is in effect much greater than twenty-three months. Vick loses his NFL contract and his endorsement deals. This article puts the loss at about 142 million dollars. Add to that the fact that Vick will lose most of his opportunities to earn a substantial wage in his livelihood. Should we care? Should any upper limit be placed on the extent to which we will punish and bankrupt a man, even a man who has committed a serious crime? Vick's co-conspirators, who stand to lose no money (comparatively speaking) got less time. If Vick is forced to trade a period of incarceration for exercising his constitutional right to stand trial (or to be uncooperative), shouldn't he also be entitled to have his very, very substantial loss of income be at least considered in the imposition of a sentence? Is the guidelines penalty for this crime twenty-three months, or is it twenty-three months plus complete bankruptcy of a man who has earned his money legitimately? Where does the guidelines say the latter? Nowhere. But that's what Vick got.

6. The sentence should have been twelve months. That's supposedly the figure the prosecution thought Vick would get in the wake of his agreement to plead guilty. Twelve months in prison is a lot of time, especially when that sentence in reality includes for Vick a forfeiture of his bonuses, his NFL contract and his endorsements. The judge could not have been blind to Vick's situation. Twelve months puts Vick out of the NFL for one season (a large income loss), and allows him to resume some semblance of his pro career. Instead, the twenty-three month sentence takes Vick out of two seasons' play, and leaves him without a job even into the third NFL season. It is a devastating sentence, and probably ends Vick's career.

7. Vick in fact got a twelve-month sentence: twelve months for dog fighting. So don't write me and say that Vick got twenty-three months for dog fighting or that dog fighting deserves twenty-three months. Vick got twelve months for his crime. He also got eleven extra months for failure to cooperate. Is eleven months too harsh for being perceived to be uncooperative, for being less than candid with the prosecutor, and for smoking marijuana? None of these were charged crimes; indeed not all of these are crimes. That people in this country are put in prison for failing to cooperate with people who aim to do them harm remains a scandal and a blemish on the criminal justice system. I used to teach criminal sentencing. What happened to Michael Vick is precisely the reason I left it.