He got off easy, in my opinion. I wrote earlier here about the need for general deterrence, as well as enhancement for certain aggravating factors like witness tampering and perjury.
For non-U.S. readers, the sentence may seem pretty harsh; the actual time to serve may end up roughly equal to the median UK single murderer who did not bring a weapon to the scene and whose conduct did not involve any other statutory aggravating factor. But, compared to what the US criminal justice system regularly hands out for various levels of moral culpability and harm caused, he got (and many white-collar criminals get) significantly less than his culpability level and harm caused would predict. I think “rich people crime” getting a significantly less stern response than ordinary crime is damaging to the rule of law and the social contract in this country.
I also feel little pity for him, at least relative to the median US convicted individual. A large number of people who receive significant prison sentences experienced great childhood trauma, suffer from significant mental illness that contributed to their offenses, and had relatively few good options in life. SBF had great privilege and could choose among an extremely broad range of lawful and attractive paths in life. I don’t think anyone has suggested that any mental illness or autism was contributory to his offense.
So in this case, my desire for consistency and inter-defendant fairness trumps the broader concerns I have about the US system being too punitive.
While I see what you’re saying here, I prefer evil to be done inconsistently rather than consistently, and every time someone merely gets what they deserve instead of what some unhinged penal system (whether in the US or elsewhere) thinks they deserve seems like a good thing to me.
(I don’t personally have an opinion on what SBF actually deserves.)
I can’t speak for the disagrees (of which I was not one), but I was envisioning something like this:
You are one of ten trial judges in country X, which gives a lot of deference to trial judges on sentencing. Your nine colleagues apply a level of punitiveness that you think is excessive; they would hand out 10 years’ imprisonment for a crime that you—if not considering the broader community practices—would find warrants five years. Although citizens of county X have a range of opinions, the idea of sentencing for 10 years seems not inconsistent with the median voter’s views. The other judges are set in their ways and have life tenure, so you are unable to affect the sentences they hand down in any way. Do you:
(a) sentence to five years, because you think it is the appropriate sentence based on your own judgment;
(b) impose a ten-year sentence that you find excessive, because it prevents the injustice of unequal treatment based on the arbitrary spin of the assignment wheel; or
(c) split the difference, imposing somewhere between five and ten years, accepting both that you will find the sentence too high and that there is an unwarranted disparity, but limiting the extent to which either goal is compromised.
I would be somewhere in camp (c), while Ben sounds like he may be closer to camp (a). I imagine many people in camp (b) would disagree-vote Ben, while people in camp (c) might agree, disagree, or not vote.
I can think of grounds to disagree, though. Say for example you were able to disproportionately protect e.g. white people from being prosecuted for jaywalking. I think jaywalking shouldn’t be illegal, so in a sense any person you protect from prosecution is a win. But there would be indirect effects to a racially unfair punishment, e.g. deepening resentment and disillusionment, enabling and encouraging racists in other aspects of their beliefs and actions. So even though there would be less direct harm, there might be more indirect harm.
I think the indirect harms are at work in this case too, and it’s just a matter of how you weigh them up. I don’t have anything but instinct to justify the weighing I’ve done.
Totally fair! I think part of my reasoning here relies on the difference between “sentence I think is longer than necessary for the purposes of sentencing” (which I would not necessarily classify as an “evil” in the common English usage of that term) and an “unhinged” result. I would not support a consistent sentence if it were unhinged (or even a close call), and I would generally split the difference in various proportions if a sentence fell in places between those two points.
It’s a little hard to define the bounds of “unhinged,” but I think it might be vaguely like “no reasonable person could consider this sentence to have not been unjustly harsh.” Here, even apart from the frame of reference of US sentencing norms, I cannot say that any reasonable person would find throwing the book at SBF here to have been unjustly harsh in light of the extreme harm and culpability.
Yeah, sorry, when I said “unhinged” I meant “the US penal system is in general unhinged”, not “this ruling in particular is unhinged”. I also used “evil” as an illustrative / poetic example of something which I’d rather be inconsistent than consistent, and implied more than I intended that the sentencing judge was actually doing evil in this case.
It’s possible that I’m looking at how the system treats e.g. poor people and racial minorities, where I think it’s much more blatantly unreasonable, and transplanting that judgement into cases where it’s less merited. 25 years is still a pretty long time though, and I wouldn’t personally push for longer. (I would, however, support a lifetime ban from company directorships and C-suite executives and similar.)
I understood the gist in context as ~ “using US sentencing outcomes as a partial framework, or giving weight to consistency when many sentences are excessive or even manifestly so, poses significant problems.” And I think that is a valid point.
Your last sentence raises another possible difference in how to approach the question: My reactions to how long he should serve are bounded by the options available under US law. I didn’t check, but I think the maximum term of supervised release (the means of imposing certain post-sentence restrictions) is only a few years here. And there is no discretionary parole in the federal system, so I can only go off of SBF’s lack of remorse (which requires acknowledgement of wrongdoing, not just mistakes-were-made) in assessing his future dangerousness. It’s possible I would go down somewhat if I could maintain a tight leash on post-sentence conduct in exchange.
Finally, I think it’s appropriate to consider a few other practical realities. It is practically essential to give defendants an incentive to plead guilty when they are actually guilty; that is commonly thought of as 25-33%. Likewise, we have to further punish defendants who tamper with witnesses and perjure themselves. The US system detains way too many people pre-trial, and if we’re going to fix that then I think the additional sanction for abusing pre-trial release has to be meaningful. So I have almost a doubling of the sentence here compared to a version of SBF who pled guilty, didn’t tamper, and didn’t perjure. So to me, saying 25 years was enough here implies ~12.5 would be enough for that version of SBF, with about 9-10 years estimated actual incarceration.
You make a lot of good points. I think there’s a lot of practical realities of an effective system here that I didn’t confront, and honestly, I’m probably better off leaving that stuff to those who know more about it, like you :)
he got (and many white-collar criminals get) significantly less than his culpability level and harm caused would predict.
What do you think is the correct level of punishment for white collar crimes based on harm? If we only look at first-order effects [1], even stealing 1B is just really bad, consequentially. Like if we use a simple VSL framework it’s equivalent to ~100 murders.
But of course, this is very much not how the justice system currently operates, so overall I’m pretty confused.
[1] And not looking at second order effects of his crimes e.g. creating negative reputation for EA which is probably negative (Though prosecutors might disagree), or creating negative reputation for crypto and political donations which is probably positive.
As far as what they predict, 40-50 years as explained in the government’s sentencing memo.
As far as what the impact should be—I would have to write a book on that. To start with, I see multiple, related harm-related measures here:
The amount of expected harm the offender knew or should have known about (this is the culpability-flavored measure);
The actual expected value of harm (this is more of a general deterrence-flavored measure); and
The actual harm (more of a retribution-flavored measure).
I also don’t see a unified measure of harm in economic-loss cases, as the harm associated with stealing $1,000 from a working class person is substantially higher than the harm of stealing it from me. Targeting vulnerable victims also gets you an enhancement for other reasons (e.g., it suggests a more extensive lack of moral compass that makes me value incapacitation more as a sentencing goal).
But most fundamentally, both harm and culpability go into the mix, filtered through the standard purposes of sentencing, to produce a sentence that I think is sufficient, but not greater than necessary, to accomplish those goals.
So I can tell you that the relationship between harm and sentence in fraud cases shouldn’t be −0-, both because there is little or no general deterrence against making your frauds bigger, and because there is some relationship between culpability and fraud size. It also shouldn’t be linear, both because this is impractical given the wide variance in harms, and because the degree of culpability does not ordinarily vary in a linear manner.
Most people in the sentencing realm think the federal sentencing guidelines increase the sentence too much based on loss amount (~ 25% uplift for each doubling of amount, plus some other uplifts tend to scale with size) and give too much weight to loss size in general. I agree with both of those views. Roughly and after considering a fuller measure of harm than aggregate financial loss, I might consider such an algorithm appropriate for weighing the harm factor in arriving at a sentence rather than for uplifting the sentence itself. And maybe I would increase the average sentence about 10% for each doubling, if all other factors were equal (low confidence)? But usually non-harm culpability factors increase with harm size, so the average increase in practice would probably be higher (low confidence).
As a bonus exercise: The differential impact between harm and non-harm culpability factors seems to vary quite a bit based on offense type. In drunk driving cases, actual harm seems to explain the bulk of the variance? No harm, first offense -- 2 days. Kill someone, no harm—perhaps 10 years. The non-harm culpability factors and even the expected-harm measures aren’t really that different in a lot of cases. Even here, the extra punishment for multiplied harm isn’t linear; you might get a 50% uplift for the second fatality, and a total of 85% more for three fatalities (low confidence)?
On the other hand, if you rob five convenience stores on five days before getting caught, you might get twice the sentence for robbing one (low confidence) -- even though the culpability scales here much more obviously with the number of offenses / amount of harm. One theory here is that getting caught and punished gives you the opportunity to learn your lesson; if you rob again after going through that then the argument for long-term incapacitation is stronger, etc.
It feels like you’re arguing for a higher-than-necessary level of harm and suffering in the world, just because a high level of suffering already exists in this context? I can’t see an argument with this structure working anywhere else (and believe me, I think Sam should be punished).
For some purposes of sentencing, social context affects what is reasonably “necessary” and what I would count as “harm.” Society is the other participant in the sentencing exercise.
Suppose A thinks from first principles that five years was enough for SBF. In the context of the American system, that sentence would convey something about offense severity—and it would drastically understate it where a street dealer in illegal drugs might get the same sentence. So because of the background severity of sanctioning, the five-year sentence is inadequate to convey the appropriate degree of societal condemnation. If you think the social educative function of the criminal process is important, that’s a problem. A sentence that tells everyone in the US that what SBF did isn’t really that big a deal on the grand scheme of criminal activity would be quite harmful.
The social meaning also matters to the victims. Seeing the person who harmed you receive a penalty in line with their crimes mitigates the suffering of many victims; seeing them get off easy imposes additional suffering on others. And those victims are experiencing the sentence through the lens of what other offenders in their society receive.
But the main harm I had in mind is the harm to the norm that all are equal before the law and will be treated equally. Now, if I hand out below-norm sentences to all offenders, maybe that particular harm isn’t present. But those kinds of breaks are not equally distributed; we know that the system is harder on people of color, poor people, and other disadvantaged groups. Giving SBF too much of a break from what others with comparable culpability and harm receive gives the perception that the privileged are more favored before the law than the commoners. Or maybe the reality—some people have argued that the court should consider SBF’s loss of reputation and loss of massive earning capacity, which sounds a whole lot to me like taking his privilege into account. Avoiding that harm is more important to me than whether SBF spends a few extra years in prison.
(I should clarify that I think a sentence of more than 25 years was necessary and appropriate here on/near first principles, mainly for reasons described in the quick take linked to my comment. I should note that this case hits a lot of the aggravating factors I tend to weigh heavily, and I see no significant mitigating factors here at all.)
I think this changed my mind, but at least for me I was more persuaded by your first point. I momentarily forgot that I really believe that white collar crime should have huge deterrent punishments that take little regard to the personal circumstances of the defendant; that ultimately a large punishment for Sam would proportionally create much less future harm. And that that’s not inconsistent with desiring & working toward an end to the hellish US prison system.
He got off easy, in my opinion. I wrote earlier here about the need for general deterrence, as well as enhancement for certain aggravating factors like witness tampering and perjury.
For non-U.S. readers, the sentence may seem pretty harsh; the actual time to serve may end up roughly equal to the median UK single murderer who did not bring a weapon to the scene and whose conduct did not involve any other statutory aggravating factor. But, compared to what the US criminal justice system regularly hands out for various levels of moral culpability and harm caused, he got (and many white-collar criminals get) significantly less than his culpability level and harm caused would predict. I think “rich people crime” getting a significantly less stern response than ordinary crime is damaging to the rule of law and the social contract in this country.
I also feel little pity for him, at least relative to the median US convicted individual. A large number of people who receive significant prison sentences experienced great childhood trauma, suffer from significant mental illness that contributed to their offenses, and had relatively few good options in life. SBF had great privilege and could choose among an extremely broad range of lawful and attractive paths in life. I don’t think anyone has suggested that any mental illness or autism was contributory to his offense.
So in this case, my desire for consistency and inter-defendant fairness trumps the broader concerns I have about the US system being too punitive.
While I see what you’re saying here, I prefer evil to be done inconsistently rather than consistently, and every time someone merely gets what they deserve instead of what some unhinged penal system (whether in the US or elsewhere) thinks they deserve seems like a good thing to me.
(I don’t personally have an opinion on what SBF actually deserves.)
To clarify, you would sacrifice consistency to achieve a more just result in an individual case, right?
But if there could be consistently applied, just, results, this would be the ideal result...
I don’t understand the disagree votes if I am understanding correctly.
I can’t speak for the disagrees (of which I was not one), but I was envisioning something like this:
You are one of ten trial judges in country X, which gives a lot of deference to trial judges on sentencing. Your nine colleagues apply a level of punitiveness that you think is excessive; they would hand out 10 years’ imprisonment for a crime that you—if not considering the broader community practices—would find warrants five years. Although citizens of county X have a range of opinions, the idea of sentencing for 10 years seems not inconsistent with the median voter’s views. The other judges are set in their ways and have life tenure, so you are unable to affect the sentences they hand down in any way. Do you:
(a) sentence to five years, because you think it is the appropriate sentence based on your own judgment;
(b) impose a ten-year sentence that you find excessive, because it prevents the injustice of unequal treatment based on the arbitrary spin of the assignment wheel; or
(c) split the difference, imposing somewhere between five and ten years, accepting both that you will find the sentence too high and that there is an unwarranted disparity, but limiting the extent to which either goal is compromised.
I would be somewhere in camp (c), while Ben sounds like he may be closer to camp (a). I imagine many people in camp (b) would disagree-vote Ben, while people in camp (c) might agree, disagree, or not vote.
yes, that’s right.
I can think of grounds to disagree, though. Say for example you were able to disproportionately protect e.g. white people from being prosecuted for jaywalking. I think jaywalking shouldn’t be illegal, so in a sense any person you protect from prosecution is a win. But there would be indirect effects to a racially unfair punishment, e.g. deepening resentment and disillusionment, enabling and encouraging racists in other aspects of their beliefs and actions. So even though there would be less direct harm, there might be more indirect harm.
I think the indirect harms are at work in this case too, and it’s just a matter of how you weigh them up. I don’t have anything but instinct to justify the weighing I’ve done.
Totally fair! I think part of my reasoning here relies on the difference between “sentence I think is longer than necessary for the purposes of sentencing” (which I would not necessarily classify as an “evil” in the common English usage of that term) and an “unhinged” result. I would not support a consistent sentence if it were unhinged (or even a close call), and I would generally split the difference in various proportions if a sentence fell in places between those two points.
It’s a little hard to define the bounds of “unhinged,” but I think it might be vaguely like “no reasonable person could consider this sentence to have not been unjustly harsh.” Here, even apart from the frame of reference of US sentencing norms, I cannot say that any reasonable person would find throwing the book at SBF here to have been unjustly harsh in light of the extreme harm and culpability.
Yeah, sorry, when I said “unhinged” I meant “the US penal system is in general unhinged”, not “this ruling in particular is unhinged”. I also used “evil” as an illustrative / poetic example of something which I’d rather be inconsistent than consistent, and implied more than I intended that the sentencing judge was actually doing evil in this case.
It’s possible that I’m looking at how the system treats e.g. poor people and racial minorities, where I think it’s much more blatantly unreasonable, and transplanting that judgement into cases where it’s less merited. 25 years is still a pretty long time though, and I wouldn’t personally push for longer. (I would, however, support a lifetime ban from company directorships and C-suite executives and similar.)
I understood the gist in context as ~ “using US sentencing outcomes as a partial framework, or giving weight to consistency when many sentences are excessive or even manifestly so, poses significant problems.” And I think that is a valid point.
Your last sentence raises another possible difference in how to approach the question: My reactions to how long he should serve are bounded by the options available under US law. I didn’t check, but I think the maximum term of supervised release (the means of imposing certain post-sentence restrictions) is only a few years here. And there is no discretionary parole in the federal system, so I can only go off of SBF’s lack of remorse (which requires acknowledgement of wrongdoing, not just mistakes-were-made) in assessing his future dangerousness. It’s possible I would go down somewhat if I could maintain a tight leash on post-sentence conduct in exchange.
Finally, I think it’s appropriate to consider a few other practical realities. It is practically essential to give defendants an incentive to plead guilty when they are actually guilty; that is commonly thought of as 25-33%. Likewise, we have to further punish defendants who tamper with witnesses and perjure themselves. The US system detains way too many people pre-trial, and if we’re going to fix that then I think the additional sanction for abusing pre-trial release has to be meaningful. So I have almost a doubling of the sentence here compared to a version of SBF who pled guilty, didn’t tamper, and didn’t perjure. So to me, saying 25 years was enough here implies ~12.5 would be enough for that version of SBF, with about 9-10 years estimated actual incarceration.
You make a lot of good points. I think there’s a lot of practical realities of an effective system here that I didn’t confront, and honestly, I’m probably better off leaving that stuff to those who know more about it, like you :)
What do you think is the correct level of punishment for white collar crimes based on harm? If we only look at first-order effects [1], even stealing 1B is just really bad, consequentially. Like if we use a simple VSL framework it’s equivalent to ~100 murders.
But of course, this is very much not how the justice system currently operates, so overall I’m pretty confused.
[1] And not looking at second order effects of his crimes e.g. creating negative reputation for EA which is probably negative (Though prosecutors might disagree), or creating negative reputation for crypto and political donations which is probably positive.
As far as what they predict, 40-50 years as explained in the government’s sentencing memo.
As far as what the impact should be—I would have to write a book on that. To start with, I see multiple, related harm-related measures here:
The amount of expected harm the offender knew or should have known about (this is the culpability-flavored measure);
The actual expected value of harm (this is more of a general deterrence-flavored measure); and
The actual harm (more of a retribution-flavored measure).
I also don’t see a unified measure of harm in economic-loss cases, as the harm associated with stealing $1,000 from a working class person is substantially higher than the harm of stealing it from me. Targeting vulnerable victims also gets you an enhancement for other reasons (e.g., it suggests a more extensive lack of moral compass that makes me value incapacitation more as a sentencing goal).
But most fundamentally, both harm and culpability go into the mix, filtered through the standard purposes of sentencing, to produce a sentence that I think is sufficient, but not greater than necessary, to accomplish those goals.
So I can tell you that the relationship between harm and sentence in fraud cases shouldn’t be −0-, both because there is little or no general deterrence against making your frauds bigger, and because there is some relationship between culpability and fraud size. It also shouldn’t be linear, both because this is impractical given the wide variance in harms, and because the degree of culpability does not ordinarily vary in a linear manner.
Most people in the sentencing realm think the federal sentencing guidelines increase the sentence too much based on loss amount (~ 25% uplift for each doubling of amount, plus some other uplifts tend to scale with size) and give too much weight to loss size in general. I agree with both of those views. Roughly and after considering a fuller measure of harm than aggregate financial loss, I might consider such an algorithm appropriate for weighing the harm factor in arriving at a sentence rather than for uplifting the sentence itself. And maybe I would increase the average sentence about 10% for each doubling, if all other factors were equal (low confidence)? But usually non-harm culpability factors increase with harm size, so the average increase in practice would probably be higher (low confidence).
As a bonus exercise: The differential impact between harm and non-harm culpability factors seems to vary quite a bit based on offense type. In drunk driving cases, actual harm seems to explain the bulk of the variance? No harm, first offense -- 2 days. Kill someone, no harm—perhaps 10 years. The non-harm culpability factors and even the expected-harm measures aren’t really that different in a lot of cases. Even here, the extra punishment for multiplied harm isn’t linear; you might get a 50% uplift for the second fatality, and a total of 85% more for three fatalities (low confidence)?
On the other hand, if you rob five convenience stores on five days before getting caught, you might get twice the sentence for robbing one (low confidence) -- even though the culpability scales here much more obviously with the number of offenses / amount of harm. One theory here is that getting caught and punished gives you the opportunity to learn your lesson; if you rob again after going through that then the argument for long-term incapacitation is stronger, etc.
It feels like you’re arguing for a higher-than-necessary level of harm and suffering in the world, just because a high level of suffering already exists in this context? I can’t see an argument with this structure working anywhere else (and believe me, I think Sam should be punished).
For some purposes of sentencing, social context affects what is reasonably “necessary” and what I would count as “harm.” Society is the other participant in the sentencing exercise.
Suppose A thinks from first principles that five years was enough for SBF. In the context of the American system, that sentence would convey something about offense severity—and it would drastically understate it where a street dealer in illegal drugs might get the same sentence. So because of the background severity of sanctioning, the five-year sentence is inadequate to convey the appropriate degree of societal condemnation. If you think the social educative function of the criminal process is important, that’s a problem. A sentence that tells everyone in the US that what SBF did isn’t really that big a deal on the grand scheme of criminal activity would be quite harmful.
The social meaning also matters to the victims. Seeing the person who harmed you receive a penalty in line with their crimes mitigates the suffering of many victims; seeing them get off easy imposes additional suffering on others. And those victims are experiencing the sentence through the lens of what other offenders in their society receive.
But the main harm I had in mind is the harm to the norm that all are equal before the law and will be treated equally. Now, if I hand out below-norm sentences to all offenders, maybe that particular harm isn’t present. But those kinds of breaks are not equally distributed; we know that the system is harder on people of color, poor people, and other disadvantaged groups. Giving SBF too much of a break from what others with comparable culpability and harm receive gives the perception that the privileged are more favored before the law than the commoners. Or maybe the reality—some people have argued that the court should consider SBF’s loss of reputation and loss of massive earning capacity, which sounds a whole lot to me like taking his privilege into account. Avoiding that harm is more important to me than whether SBF spends a few extra years in prison.
(I should clarify that I think a sentence of more than 25 years was necessary and appropriate here on/near first principles, mainly for reasons described in the quick take linked to my comment. I should note that this case hits a lot of the aggravating factors I tend to weigh heavily, and I see no significant mitigating factors here at all.)
I think this changed my mind, but at least for me I was more persuaded by your first point. I momentarily forgot that I really believe that white collar crime should have huge deterrent punishments that take little regard to the personal circumstances of the defendant; that ultimately a large punishment for Sam would proportionally create much less future harm. And that that’s not inconsistent with desiring & working toward an end to the hellish US prison system.