Judges Must Be the Adults in the Room

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Dennis Hastert is what happens when there are no adults in the criminal justice system. Fortunately, most prosecutors exercise good judgment before they indict someone. But if an elected official has been targeted and a prosecutor is determined to bring him down for something, the system can be manipulated. When that happens, judges must be the adults in the room.

Prosecutors sometimes think they have goals beyond prosecuting crimes. An attorney who represents the People may start to think he knows better than the voters.  How often do even the informed readers of this blog believe their opinions are more valid than those expressed by individual voters at the ballot box?  Unfortunately, when a prosecutor decides that someone is “bad,” he can just construct a crime by creatively stringing together unrelated laws or by interpreting statutes in ways that were never intended, such as using the Sarbanes-Oxley Act to prosecute fishermen.

Prosecutors can get infected with the public’s blood lust for politicians. While we say we want to elect “regular” people like ourselves, we don’t mean it. The truth is that all people, regular or not, have skeletons and make mistakes. Psychologists say that when we focus on someone else’s flaws, we are expressing our own anger, guilt and shame as a mirror of our own. The public and the media seem to find special satisfaction in convicting politicians, and prosecutors often use this tendency to promote their own careers.

But then there are the judges. The judges are supposed to be the failsafe in the justice system. Selected for their temperament, wisdom, and learning, they are supposed to be rational referees who are above public opinion. They are supposed to supervise the prosecutors and safeguard the process.

When they don’t, Dennis Hastert is the result. A 74-year old man was tried for the “crime” of giving his own after-tax money to someone. It just so happened that he did this in exchange for a very bad mistake he made decades earlier. But, after he was convicted for the “crime,” the original mistake was used in his sentencing, even though the mistake was never given due process. The mistake was used to pump up his sentence for the “crime.”

Hastert pleaded guilty to “structuring,” which involves bank withdrawals smaller than $10,000 with the explicit purpose of avoiding detection by authorities. The Bank Secrecy Act (BSA) specifically requires banks to file a Currency Transaction Report (CTR) for each transaction in currency over $10,000. The requirement is intended to flag large withdrawals that are often linked to money laundering, drug trafficking and other nefarious activities.

The Hastert case is unusual because he was not charged with any underlying crime, such as tax evasion or embezzlement, which the BSA was intended to deter. Rather, prosecutors in this case alleged that he made “illegal” withdrawals to pay off one of his accusers. As such, prosecutors clearly used their discretion to publicly embarrass Hastert and bring media attention to his alleged sexual misconduct.

While Hastert acknowledged that he “mistreated” several boys while serving as a high school wrestling coach, he was never charged with any sexual crimes. The statute of limitations had long since expired, but that did not restrain the prosecutors. The abuse became a centerpiece for the structuring trial, with prosecutors producing lurid details of crimes that Hastert was not charged with.

The court’s duty was to stop the prosecutors from converting a structuring case into a child molestation case by proxy. Not only did it fail to step in, it actually condoned it. At Hastert’s much-anticipated sentencing hearing, the molestation accusations took center stage. “If Denny Hastert could do it, anyone could do it,” said U.S. District Judge Thomas M. Durkin. “Nothing is more stunning than to have the words ‘serial child molester’ and ‘Speaker of the House’ in the same sentence.”

Federal guidelines recommend probation to six months in prison for violations of the BSA. Nevertheless, Hastert will serve 15 months in jail, pay a $250,000 fine to a crime victims’ fund, and complete two years of supervised release. On top of that, he is ordered to undergo sex-offender treatment. All of this was punishment for crimes for which he was not tried or convicted. 

As one commentator noted, what transpired at Hastert’s sentencing was similar to when another judge sentenced O.J. Simpson for a 2007 Las Vegas robbery. That judge lectured Simpson about murdering his wife, even though a jury had lawfully found him not guilty. While we might be horrified with what either man did, we still have to honor the due process of the rule of law. Judges have no business dredging up unproven allegations and, frankly, they should know better.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. Judges Must Be the Adults in the Room