Justice DeLayed, but not denied

The Hammer is guilty, guilty, guilty.

Ronnie Earle is vindicated as a Travis County jury finds Tom DeLay guilty of money laundering. DeLay faces approximately a gazillion years in prison.

The substance of the charge was that DeLay arranged to have corporate campaign contributions, illegal under Texas law, laundered through the Republican National Committee. The contributions went to the RNC, which promptly made out checks for the same amounts to the local legislative candidates DeLay was backing. The result of the successful corrupt move was to enable the midterm Congressional redistricting that handed the Republicans five Congressional seats.

If I were the judge, I’d send DeLay away – to send a message – but not for anything like the absurd amount of time he’s exposed to: 20 years each on the conspiracy counts, 99 years on the money laundering. Five years of actual prison time would be enough to convince onlookers that this isn’t a game.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

20 thoughts on “Justice DeLayed, but not denied”

  1. Five years of prison time . . .

    It's just, I suppose. But a boy can still dream of schadenfreude.

  2. Would a non-politician get five years on the money laundering charges? I can't agree, the political class get cut too many breaks as it is. Nail him to the wall, the message that needs to be sent is that politicians don't get any breaks other people don't get.

  3. I don't know anything about the details of DeLay's crimes beyond what Mark writes. But, if DeLay enabled the midterm Congressional redistricting that handed the Republicans five Congressional seats, then his money laundering was far more serious than a non-politician's would likely be, and he should be punished accordingly. Politicians' crimes should generally be treated more harshly than non-politicians' comparable crimes, because of the violation of the public trust that they involve.

    That is one reason that Obama's glib lie that to prosecute Bush would be to look backward, not forward, is so abhorrent. It was a lie because Obama knows that deterrence is forward-looking, and that, by failing to look forward, he has established that the president is above the law, and that future presidents may feel free to order torture.

  4. If I were the judge I wouldn't bother with sentencing, because the conviction is going to be thrown out on appeal.

  5. It's not often I agree with Brett, but this is one of those times. Corruption and perversion of our electoral system should be something we take very seriously indeed. Maybe five years is enough, for someone who saw himself as being part of an untouchably safe privileged class, and for his peers to get the message – but I'd throw the book at him, just to be sure.

  6. @Thomas,

    IIRC, the case was already appealed on the law. I believe that the indictment hit the highest court of Texas, and survived. Unless the judge somehow screwed up in conducting the trial, I'm not sure what the grounds of appeal would be.

  7. Glad to see that Thomas has the courage of his loyalties, and is willing to defend the most corrupt Republican politicians. The defense theory at trial was that money isn't fungible. Good luck with that on appeal. The appellate issue, as I understand it, stems from the fact that the Texas law banning corporate campaign contributions doesn't have an associated conspiracy charge, so the prosecutors had to proceed on a "money laundering" theory. But it's only "money laundering" under Texas law if the money was originally derived from illegal activity. So the prosecutors had to convince the jury that the original corporate contributions were intended for illegal purposes. Could an appeals court packed with Republicans find that too much of a stretch? Maybe. But I wouldn't count on it.

    I'm not surprised by the blood thirst of my political allies here, but an adequate sentence is one sufficient to deter the crime. Two years behind bars is a long time, but I can imagine someone willing to risk it for the kind of power DeLay wielded. Five years behind bars is forever. More than that is superfluous cruelty.

  8. In case the appeal doesn't work, Thomas, you can always bake your hero a cake with a file hidden inside it.

  9. More seriously, I agree with Mark and Anon. America's often insanely long prison sentences are problematic. Five years in an orange jumpsuit sounds about right for DeLay.

  10. Normally I would agree with the five-years as a "fair" sentence for such a low-dollar volume crime. But corrupting government is one of the few exceptions to my desire to ratchet-back our idiotic penal code. To me, this is a more serious crime than the huge money-laundering scam the FBI is going after. That's mostly rich people slightly fucking-over other rich people. It doesn't really address most Americans.

    However, you get enough political corruption and the nation fails, even if it continues to exist on paper.

  11. I don't think this remotely approaches "political corruption". Not like a Congressman storing bribes in the freezer, for instance. It's more of a "malum prohibitum" offense. But lawmakers ought to be held to strict compliance with the laws they impose on others, regardless of how ill conceived those laws might be.

  12. I'm surprised that no one has suggested that the underlying prohibition on corporate donations to political campaigns is an unconstitutional limitation on corporate free-speech or similar.

    Whether the courts would endorse another sweeping dictum in favor of unlimited corporate financing of politics, or simply manufacture a technicality to moot the conviction, I don't really expect Tom DeLay will go to prison in Texas.

    I am not, of course, endorsing business/corporate financing of politics, which, in my view, has been deeply corrupting, nor do I, personally, think there is any legitimate constitutional principle, standing in the way of strict and sweeping limits on the power of private business corporations to participate in electoral politics. But, people of my convictions are not running the United States. For the sort of people, who dominate the judiciary of the United States, or Texas, I find it hard to imagine that there are not plenty, who would be easily persuaded that what Tom Delay did, was normal and practical politics, and if the letter of the law was violated, that's evidence that the law is wrong, not the man.

    The worldview of Republicans, especially including Republican judges elected or appointed within the last 15 years or so, routinely makes partisan exceptions a standard practice, and regards corporate business domination of law, nevermind politics, a normal and desirable state of affairs. That's not how I would wish it, but I believe that is how it is. We can offer the hypothesis that DeLay will go to jail for some significant stretch (more than a year, since it is a felony conviction) as a test; my expectation is that it won't happen. I would be very happy to revise my highly pessimistic priors on this.

  13. @Brett: It doesn't matter much whether the bribe is stored in a freezer or run through the RNC. A bribe is a bribe and let's not parse this to death, the reason these contributions were made illegal in the first place is because they are functionally bribes, meant to unduely influence elected officials.

    @Bruce: I sadly agree with your take. Even if DeLay get's sentenced to time he will no doubt be pardoned or have his sentence commuted. All of course in light of his long service to the Great State of Texas and deep humanity and love of God, apple pie and puppies. The worst thing that ever happens to a Republican thug is they have to resign and retire to a lowly think tank with a seven figure salary and pitch their memoir on FOX. He'll probably get another chance to disgust us all on Dancing With the Stars.

  14. Fred: The reason you store a bribe in the freezer is that it's, clearly and undeniably, a bribe, and so you need to conceal it.

    The problem with looking at campaign donations that way is that not all campaign donations are bribes. I might go so far as to say MOST campaign donations are not bribes. They are, in all seriousness, donations of money for the candidate to use campaigning, because you think it would be good if the candidate won.

    And how do we, typically, distinguish between campaign donations and bribes? Since bribes can, of course, be disguised as campaign donations for public viewing?

    We do it by looking at if the money is spent campaigning, or spent for the candidate's personal use. And whether some quid pro quo is asked for, some action by the candidate the candidate was not otherwise inclined to do. Because, remember, giving somebody money to help them get elected because you like what they'd do if they were elected is not a "bribe". It really IS a campaign donation. It's only a bribe if it's for their personal use instead, or contingent on their agreeing to change what they'll do if elected.

    Furthermore, when campaign donations are really bribes, it is almost always the case that the recipient is really an incumbent, not a challenger. Because,

    1. Most challengers lose, which means that bribing challengers is inefficient. Most of the time you'll be giving the money to somebody who won't be able to deliver their end of the corrupt bargain.

    2. Most incumbents win, which means that giving them campaign donations isn't hugely important to you if all you want is for them to keep doing what they were doing. Almost certainly they were going to anyway.

    In the above case, several factors stand out:

    1. There's no evidence that the candidates were being asked to do something they wouldn't naturally be expected to do.

    2. There's no evidence that the sources of the money didn't actually want the candidates to win because they liked what they were naturally going to do.

    3. There's no evidence that the money was diverted to the candidates' personal use, rather than used for campaigning.

    4. The candidates receiving the money were challengers, not incumbents.

    Now, since Texas law prohibits corporate campaign donations even if they AREN'T bribes, none of that matters as far as DeLay's guilt. He laundered money to circumvent Texas law. That's what he's guilty of, NOT bribery. You want to call it bribery, cough up some evidence. 'Cause all you've got now is proof he directed some campaign donations to people he had a perfectly legitimate reason for wanting elected, and even if that pisses you off (Because you're a Democrat, and so don't want them elected.) it ain't bribery.

  15. I'm sympathetic with Brett's point, though I'd cast it differently: The purchase of politicians is such a routine feature of American politics that Delay's behavior would be unremarkable were it not for the peculiarities of Texas law.

    Contrary to Professor Kleiman, though, I can't get worked up about the possibility of Delay serving 20 years for three reasons: It ain't gonna happen; if it did, it still wouldn't be enough to serve as punishment for Delay's misdeeds, which extend far beyond this incident; and there are many, many cases of deep injustice that are more worthy of my concern.

  16. Purchasing politicians is indeed regrettably common in this country, (Because they've got enough power that purchasing them makes economic sense.) and so is extortion by politicians, which 'reformers' tend to describe as bribery, because recognizing it for what it really is renders the whole idea of campaign finance regulations kind of stupid, like assigning designing financial controls to embezzlers.

    But campaign donations are not purchasing politicians. Democracies must have campaigns, campaigns must be paid for, and if they're not going to be paid for by people who want to, donating, the alternative is their being paid for by people who don't what to, being shaken down.

    I much prefer a system of voluntary campaign donations, even if it annoys the self-appointed 'reformers'.

  17. I think DeLay should get some jail time.

    First, isn't Texas a tough, no-nonsense, law'n'order kind of place? That's what they'd have us believe, anyway. I bet they have inmates in jail for serious terms who've done less than DeLay.

    Second, what does probation accomplish? DeLay's pals aren't going to care about this. It's not like the conviction itself is going to have any major impact on his life. And it's not like he's a young first offender who can justifiably be given a second chance to get straight, find a job, etc. DeLay is who he is.

    Third, if you want to deter this kind of behavior by others in the future, you've got to send him to jail. Most who do this kind of thing won't even be indicted, so you have the make the consequences of being caught and convicted bad enough to make them think twice.

    I agreew ith mark. It doesn't have to be twenty years, and shouldn't be. Five is probably the upper limit, and 2-3 wouldn't be outrageously short. But something is called for.

  18. The weakness of the case is perfectly set out in Mark's comment above, where "intended for" is substituted for the actual requirement in Texas law of "derived from." If you think these are the same concepts, you aren't thinking clearly. DeLay, like anyone else, has the right to a fair application of the law, whatever I or anyone else thinks of him. And under a fair reading of Texas law, he hasn't committed the crime of money laundering.

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