When sentencing a white collar criminal the "hard" question that invariably arises is whether or not to incarcerate. Defendant is usually viewed as a decent, non-violent person and generally incarceration has been eschewed and an alternative sentence imposed.
However, of late, some courts have questioned the efficacy of this approach and are beginning to inquire into the goals to be attained by the sentence and how best to accomplish them. See, e.g., United States v. Buettner-Janusch, 534 F. Supp. 655 (S.D.N.Y.1982); United States v. Krutschewski, 509 F. Supp. 1186 (D.Mass.1981). Astonishingly, although a frequent task, there is a dearth of sentencing opinions. And those, that have been published, generally only state the reasons for imposing a particular sentence, without explaining why an alternative sentence
was rejected, perhaps because a court is not required "to state explicitly why it has rejected alternatives to incarceration." Black v. Romano, U.S. , 105 S. Ct. 2254, 2257, 85 L. Ed. 2d 636 (1985).
Prior to the adoption of our new Criminal Code on September 1, 1979 the:
dominant sentencing ideology stressed two themes: rehabilitation and prediction of future criminality. The judge was supposed to fashion the sentence to promote the offender's resocialization. The sentence also was supposed to reflect the likelihood of the offender's offending again. [ State v. Roth, 95 N.J. 334, 346 (1984)]
However, studies disclosed "clinical evidence that the prevailing theory of rehabilitation simply did not work [and] . . . led irrevocably to the conclusion that the criminal justice system had no idea how to rehabilitate offenders and reduce recidivism". Id. at 348. And once this determination became clear there "emerged something of a consensus that the root cause of crime is the criminal . . . [and] empathy for the felonious few . . . has resulted in cruelty to the . . . many." "Federal Criminal Sentencing Policy," Congressional Digest (June-July, 1984) at 163.
After extensive studies the Legislature concluded that "the theory of rehabilitation should be abandoned as a primary justification for the nature and length of sentences," State v. Roth, supra at 349, and it adopted the new Criminal Code which clearly enunciated as its "paramount sentencing goal that punishment fit the crime not the criminal." State v. Yarbough, 100 N.J. 627 (1985). In short the sentence must be based upon the crime and not oriented to the criminal.
This is not to suggest that, previously, rehabilitation was our sole concern. Incarceration was imposed "[i]f the offense has strong emotional roots or is an isolated event unassociated with a pressing public problem," State v. Ivan, 33 N.J. 197, 202 (1960) (a bookmaking case), or when to do otherwise would bring "the criminal law into disrepute by appearing to depreciate the magnitude of the offense." State v. Leggeadrini, 75 N.J. 150, 163
(1977) (7-10 years imprisonment imposed upon a 66-year-old retired man with no prior criminal record and an excellent 31-year work record for fatally shooting a neighbor in an argument over damage to defendant's property caused by victim's ballplaying). But these were the exceptions.
White collar crimes generally present a fairly uniform fact pattern. Defendants usually have no prior criminal record (not even an arrest), no propensity for recidivism, occupy respectable positions in business, are mature adults, served in the military service and are apparently happily married. This defendant fits squarely within that scenario.
He admitted pilfering two checks of his employer, AT & T, made payable to an alleged vendor, one for $175,000 on July 9, 1984 and another for $200,000 on September 7, 1984 which he deposited into a checking account he controlled and used for his personal purposes. He pled guilty to a third degree offense of theft, in violation of N.J.S.A. 2C:20-3, and two fourth degree offenses of forgery, in violation of N.J.S.A. 2C:21-1(a)(2).
The court has decided to incarcerate defendant and will attempt to explain why it does so and why it rejects alternative sentences. Judges are well aware of the factors to be considered ...