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In the first sentencing related to the massive college admissions scandal that broke in March, former Stanford sailing coach John Vandemoer, accused of taking $610,000 in bribes to set up three prospective students as ostensible sailing recruits, was ordered to serve a single day in prison, along with a hefty fine and two years of supervised release. (The technical ruling in the case was “time served,” meaning he’ll spend zero time behind bars.) The sentence was surprising, but not totally unexpected: Federal guidelines called for between three and four years in prison, but prosecutors recommended just 13 months. The prosecutors’ reasoning: Vandemoer “has otherwise led a law-abiding life, did not directly profit financially from his crimes, promptly accepted responsibility for them, appears genuinely remorseful, and is unlikely to re-offend.” The judge apparently heard their rationale and opted to do Vandemoer one better.
Vandemoer’s sentence is a stark contrast to others who faced similar charges. In 2011, Kelley Williams-Bolar was convicted of falsifying her residency records in order to send her kids to another school district and sentenced to 10 days in county jail and put on three years of probation. That same year, Tanya McDowell was sentenced to five years in prison for first-degree larceny after enrolling her son in a school outside her district. In the years that followed, parents in Kentucky, Pennsylvania, and Missouri were all arrested and put on trial for enrolling their children in better public schools outside of their districts, resulting in jail time and felony convictions.
The differences in these instances clear: Vandemoer is a middle-class white guy, the value of whose crime surely exceeds the theft of services perpetrated by this handful of African American and Hispanic families. And that contrast is sadly unsurprising in a country where African Americans make up 12.1% of the general population but 37% of the federal prison population. Indeed, University of Michigan Law School research published in January indicates that while white offenders commit property offenses — including fraud — at a higher rate (39.8%) than African American offenders (25.7%), African Americans are sentenced and charged at a much higher rate (16.4% for African Americans vs. 7.5% for white people, and 79.7% vs. 46.8%, respectively). Worse yet, African Americans are likely to get hit with longer sentences: an average of 64 years for property offenses, compared to an average of 38 years for whites.
Game recognizes game, especially when that game is basically a giant, legalized pay-to-play scheme.
White collar economic crimes are, according to a recent New York Times analysis, by nature notoriously hard to sentence, and federal judges like those involved in the college admissions scandal use the leeway they’re granted under federal guidelines to weigh an offender’s actual crime against their previous history and their potential to re-offend — a calculation that falls to the individual judge’s discretion.
This sort of subjective assessment isn’t inherently unjust, but it does present an opening for disparities — and bias — to emerge, particularly in the context of economic crimes. According to the U.S. Sentencing Commission, “fair sentencing is individualized sentencing” — meaning that all just sentences are inherently tailored to the unique circumstances of a crime — “as long as the individuals in each group are treated fairly.” But that makes the disparity detailed in federal sentencing data more troubling, not less, in an age when federal judges are mostly white men unshackled from statutory guidelines (although U.S. District Senior Judge Rya W. Zobel, who oversaw Vandemoer’s sentencing, is a woman).
A 2017 essay in the Iowa Law Review details the outsized impact individual judges play in federal sentencing for economic crimes. “White-collar defendants received ‘special empathy’ because their position in society was more like the judge’s own position,” wrote the essay authors, two law professors and one former federal judge. “The judges further believed that the collateral consequences of conviction — loss of prestigious jobs, professional licenses, and status in their communities — satisfied the needs of punishment and sentencing.”
In short, game recognizes game, especially when that game is basically a giant, legalized pay-to-play scheme. In the context of the courtroom, it’s likely that a white judge might, unconsciously or not, empathize just enough with the white defendant to issue him some mercy. Indeed, as The Washington Post reports, Zobel explicitly noted that Vandemoer didn’t use the bribes for his own gain (he apparently put the money back into the sailing program), as if that somehow makes accepting them appropriate: “I have not heard of anyone [swept up in the admissions scandal] who is less culpable,” Zobel said.
There’s a distinct type of privilege that’s even worse than the actual of accepting bribes, as Vandemoer did: It’s the privilege of getting caught and still getting off light.