Stewart's sentence leaves few satisfied

While some Martha fans say it doesn't fit the crime, others say it's another example of the rich getting off too easily.

Martha Stewart's five-month jail sentence is likely to be debated for years.

Was the punishment, which also includes a five-month house arrest, two years' probation, and a $30,000 fine, too lenient, perhaps evidence that the rich get off more easily? Or was it too tough, given the nature of the crime and the fact she is a first-time offender?

It is a debate that frequently rages when a celebrity, a wealthy businessperson, or a political leader gets convicted of a crime. Critics of the criminal justice system point to the fat wallets of white-collar felons, who sometimes end up with electronic bracelets around their ankles while they shuffle around their homes in slippers. Defenders of the system claim that judges are actually harder on white-collar types, who often don't get the proverbial "second chance" no matter who is defending them. This argument is likely to resonate in other high-profile trials, such as those of Kobe Bryant of the Los Angeles Lakers, and Kenneth Lay, former head at Enron.

"There is no doubt that the justice system has never found a way to even the field when some lawyers are better than others and some defendants have more money to hire them," says Larry Soderquist, a lawyer with the firm Baker, Donelson, Bearman, Caldwell & Berkowitz in Nashville, Tenn.

The issue of equality before the law is one of the reasons Congress formed the US Sentencing Guidelines Commission in 1987. The commission formulated the current sentencing standards, which take some discretion away from judges.

Moreover, Attorney General John Ashcroft has been particularly adamant that white-collar criminals serve time in jail. "In fairness to Ashcroft, [jail time] has largely been the position of the Department of Justice for a number of years on the theory that for white-collar offenders, the prospect of prison or seeing their peers go to prison acts as a form of deterrence," says Mark Pearlstein, a former federal prosecutor, now a partner at McDermott Will & Emery in Boston.

This legal theory has been enforced even more in the wake of corporate scandals, says Mr. Soderquist. "The world changed with the Enron debacle, and [Stewart] got caught up in it," he says. "The [Securities and Exchange Commission] is even more aggressive with any white-collar crime."

In fact, Herb Hoelter, Ms. Stewart's sentencing consultant, who advises a number of nonviolent offenders, finds that nonwhite-collar defendants often get a "second chance."

"I think the judges are tougher on white-collar criminals," he says.

In Stewart's case, that's what the federal prosecutor, Karen Patton Seymour, had in mind. After Stewart's team suggested community service or house arrest, she said, "Ms. Stewart is asking for leniency far beyond what ordinary people who are convicted of these crimes would receive under sentencing guidelines."

On Friday, the federal judge overseeing the case, Miriam Goldman Cedarbaum, disagreed with the government, giving Stewart a punishment on the low end of the range, which was 10 to 16 months. She said that Stewart had suffered enough, and she said she had received, and read, 1,500 letters of support for the diva of good taste.

"She is still going to jail, and this was not the crime of the century," says Kirby Behre, an expert on federal sentencing and a partner at Paul Hastings in Washington. "She has 10 months of restricted mobility. Would people feel better if it was 16 months?"

Outside the courtroom on Friday, Stewart's supporters voiced differing opinions. Louise Egan, wearing "Free Martha" earrings ("making a statement for her in a fashionable way"), said she thought the sentence was reasonable. "After all she did commit a crime," she said.

However not far away, Mark Cerulli, wearing a New York Mets T-shirt, bellowed, "This is ridiculous, justice is not served."

Stewart herself vowed that she would be back. She called her problems "a small personal matter" that had been blown out of proportion "with such venom and such gore." And in a perfect Martha-esque moment, with millions of viewers watching on television, she appealed to them to subscribe to her magazine and buy her products.

Not only did the judge give Stewart less time in jail than the prosecutor wanted, but she also stayed the sentence until the appeals are heard. "A judge ought not to stay unless there is the existence of significant legal issues that might affect the validity of the conviction or the amount of the sentence," says Mr. Pearlstein of McDermott Will & Emery.

Stewart's next legal venue will be the Second Circuit Court of Appeals. Her team has said it will ask for a new trial, citing a juror who did not reveal everything about his past and a government witness who is now charged with perjury. The appeal process could take a year, says Pearlstein. Still more time would be added if Stewart decided to appeal to the US Supreme Court.

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