Back in January I wrote about the indictment of Dinesh D'Souza and how difficult it would be for him to defend himself based on his assertion that he was selectively prosecuted based on his political views.
D'Souza did eventually file a motion seeking discovery into the government's reasons for charging him. The government opposed the motion and the court denied it. That result is not surprising — it's incredibly difficult to make a showing that specific "similarly situated" people not sharing your protected characteristics have not been prosecuted.1
So D'Souza pled guilty, and now faces sentencing. The felony conviction itself is the harshest consequence he faces. The recommended sentencing range under the United States Sentencing Guidelines is between 10 and 16 months, and is in a "zone" of the sentencing chart explicitly allowing the court to split that sentence in half and make him serve half in custody and half in home detention. That's based on a very straightforward application of the Guidelines that both the government and the defense agree upon.
D'Souza's attorneys are asking the court to exercise its discretion to go below the Guidelines and impose a non-custodial sentence — not to send him to jail, in other words. That's not even a little surprising. I would do the same thing. So would any competent defense attorney. Given D'Souza's lack of record and his background, it's a reasonable and achievable goal. It's no sure thing, but many judges would do it. (If anything D'Souza's privileges work against him on this issue — the "rich and famous people shouldn't get special treatment" narrative will be powerful. With some judges he'd have a better shot at the break if he were an obscure middle manager.) The government is opposing that request and suggesting that the court should sentence D'Souza within the guideline range — in part because of things he's been saying in the media that, in the government's mind, show lack of remorse.2
As is standard with federal sentencing issues, some wrong things are being written about this. (Example: Salon says prosecutors "rejected" D'Souza's plea for lenience, which makes it sound like it's their call. They argued against his request, and the judge will decide the matter.) I'm used to that. What bothers me is the reaction to a letter written to the judge in D'Souza's favor by Michael Shermer, a prominent skeptic.
Shermer, who has debated D'Souza, says he has known him for twenty years and finds him forthright, honest, polite, and courteous. Shermer expresses his admiration and respect for D'Souza. To anyone who practices federal law, there's nothing at all remarkable about the letter. It's concise (which is good), specific about how the writer knows the defendant (also good), and combines general statements with at least one specific example (also good). It's not perfect — it's a touch too general for my armchair-quarterback tastes — but it's a fine letter, and the type of one I submit for clients all the time.
But the mild letter has provoked outrage, because of Shermer's and D'Souza's opposite ideological positions. This blogger screams "TRAITOR." Ophelia Benson characterizes it as "Important Guys gotta stick together." ""WTF?" asks P.Z. Myers. "Let D'Souza's fellow Christians and conservatives defend him. Shermer by doing this has betrayed most of the skeptical community," says someone on Twitter. "No one deserving of the title 'skeptic' could possibly believe that D'Souza is forthright and honest, or that he is an 'important voice in our national conversation,'" says skeptic Ed Brayton. I'll spare you the quotes from Twitter.
I don't know Dinesh D'Souza personally. In his public persona I find him to be totalitarian, polemical, occasionally (and probably deliberately) offensive, and frequently ridiculous. But in my experience, people are not the sum of their public statements. People who are nice in public can be awful in private, and some people who are terrifying in public can be incredibly gracious in private. It's entirely plausible to me that, despite his rather trollish stage persona, D'Souza can be kind, decent, and charitable in person. It certainly doesn't surprise me that two people of very different ideologies can respect each other. I cherish friendships with people significantly to my left and right, and have learned from them.
The reaction to Shermer's letter disappoints me. It depresses me. It doesn't make me feel that way because of how I feel about D'Souza. It makes me feel that way as a defense lawyer, and as a citizen. This scorn for appeals for mercy is an old story; I've condemned it before when someone on the opposite side of the political spectrum was sentenced. But it troubles me every time it repeats. It would be a better nation if people could recognize the good qualities of people they vehemently oppose. It would be a better nation if we were wary of the justice system no matter what the ideology of today's defendant. It would be a better nation if we didn't promote the narrative that wrongthinkers get what they deserve. Ultimately, what these critics have done is lend credence — perhaps unjustified credence — to D'Souza's claim that his prosecution is political.
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