Caging a Businessman

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Recently by Skip Oliva: The Think-Tank Mentality


Steven VandeBrake is presently serving a four-year prison sentence for exercising control over his own property. His "crime," according to the Department of Justice, was that in exercising said property rights he entered into voluntary coordination with other property owners. Because this coordination occurred among individuals with a similar type of property — in this case, concrete — VandeBrake committed "price fixing," which the government deems a felony.

After coercing a confession from VandeBrake, the DOJ was content to kidnap and imprison him for a period of about 18 months. In theory, the government claims the right to kidnap and imprison a person for up to 10 years for the imaginary crime of "price fixing," but generally persons are only imprisoned for less than two years.

Unfortunately, the judging overseeing this illegal kidnapping operation proved even more vengeful towards VandeBrake then his DOJ captors. Mark W. Bennett, a judge on the federal bench in Iowa since 1994, decided to make a severe example out of VandeBrake. Bennett had two axes to grind. First, he didn't like the federal sentencing guidelines, the product of a 1984 congressional statute that purports to set uniform rules for government kidnappings. Second, Bennett didn't like VandeBrake because he was a rich, Caucasian male. That's not hyperbole; just look at what Bennett said in his official opinion sentencing VandeBrake:

One cannot help but wonder why sentences under the Sherman Act are so low. Is it the result of be explicit and/or implicit bias on behalf of Congress? The captains of American industry at the time of the Sherman Act's passage in 1890, and the most likely targets of prosecution under the Sherman Act, were the likes of J.P. Morgan, John D. Rockefeller, Andrew Carnegie, and Meyer Guggenheim. These individuals were almost exclusively wealthy, white, Anglo-Saxon, protestant males who were politically well-connected. Although the demographics of American industry have changed since 1890, the overly lenient sentencing (in my view) for white collar, antitrust criminals found in the origins of the Sherman Act lingers today in the United States Sentencing Commission Guidelines.

Bennett resented the fact that Congress didn't treat "price fixing" the same as theft, fraud or violent crimes. He also resented what he described as VandeBrake's "insatiable greed," which led VandeBrake to offer his own concrete for sale at a price higher than what Bennett, or the DOJ, would have liked. The judge also condemned VandeBrake for his "utter lack of involvement in any charitable or civic activities," as if providing concrete necessary for the construction of buildings wasn't enough of a service to mankind.

Accordingly, Bennett more than doubled the DOJ-recommended sentence for VandeBrake and condemned him to four years in prison. This was a record for a Sherman Act case.

Last month, the Eighth Circuit Court of Appeals affirmed Bennett's illegal and immoral action. A divided three-judge panel simply looked the other way as a bigoted, narcissistic district judge violated VandeBrake's constitutional rights. William J. Riley, the Eighth Circuit's chief judge, joined his colleague Kermit Bye in ratifying Bennett's abuse yet wrote separately to express a shred of concern:

I concur in the general reasoning and the conclusion of Judge Bye's opinion. I write separately to disassociate myself from the district court's comments about economic success and status, race, heritage, and religion. I consider those comments inappropriate and not a proper reason for supporting any sentence.

And yet Riley affirmed the sentence. He wouldn't even afford VandeBrake the benefit of a new sentencing hearing before an impartial judge. Judge Bye's excuse was that there was "no basis for concluding the final sentence is substantively unreasonable," even though no prior antitrust defendant ever received such a harsh sentence.

VandeBrake's only supporter was Arlen Beam, a senior Eighth Circuit judge who has served since 1987. Beam attacked Bennett and his colleagues Bye and Riley. He noted that despite Bennett's bigotry, "even a multi-millionaire businessman has the right to be sentenced under the rule of law," particularly the federal sentencing guidelines. Bennett simply ignored the law. He substituted the guidelines for fraud, which were harsher, for the antitrust guidelines. "This failure to use the antitrust guideline for antitrust violations resulted in procedural error," Beam concluded.

Based on the guidelines, other courts had sentenced "price fixing" defendants like VandeBrake to prison terms varying between 6 and 19 months. The DOJ recommended 19 months for VandeBrake. Bennett gave him 48 months. Beam noted that "over a period of 15 years, VandeBrake was the only antitrust offender sentenced above the guidelines range."

But let's not quibble too much over numbers. A prison sentence of one day against Steven VandeBrake is unjust. He committed no crime. The Sherman Act has become a license for DOJ lawyers to retroactively punish what they perceive as overcharging by private businesses. There was no allegation or evidence of any violent or coercive act by VandeBrake.

But setting aside the antitrust question, let's look at the broader conflict implicated by Bennett's action. A defendant is guilty of a crime. By what standard should he be punished?

In the state's monopoly judicial system, there is an artificial conflict between prosecutorial and judicial "discretion." Prosecutors, eager to ignore the Constitution's due process requirements, coerce guilty pleas by threatening harsher sentences for defendants who go to trial and make the government prove its case. Judges, particularly bigots like Bennett, want maximum discretion to punish defendants according to their own personal view of the defendant.

The sentencing guidelines were an attempt to reconcile these conflicting sociopathic impulses by overlaying a veneer of objectivity. The guidelines help "calculate" a sentence by incorporating a number of factors. In effect, they're judicial price controls.

But like real price controls, they result in improper valuation. Just as antitrust laws ignore the market by declaring certain market-determined prices "anticompetitive," sentencing laws ignore what should be a transaction between a victim and his attacker. In cases where there is a true crime — a violation of individual rights — the victim has the right to seek restitution. This might not always involve a perfect restoration, particularly in cases like murder, but the primary consideration must always be compensating the victim.

In the state's justice system, by contrast, the victim is largely ignored. Even in antitrust cases, where the victims are purportedly the overcharged customers, any relief for them must come through civil litigation. The DOJ clearly states it is not in the business of restitution, but retribution — punishing those who defies the state's authority, not those who violate the rights of individuals.

In a retribution-based system, justice exists only in the eye of the punisher. In VandeBrake's case, he got caught between two parties — the DOJ and Bennett — fighting over who could punish him the most. The "victims" were never a consideration. And the length of VandeBrake's imprisonment was simply a reflection of Bennett's personal policy disagreement with Congress and the sentencing guidelines.

Let me reiterate: A judge punished a man not because of his alleged crime, but because the judge had a bone to pick with the United States Congress. This goes beyond "judicial activism." This is naked judicial tyranny.

Unfortunately, the monopoly justice system won't discipline or fire a bad judge like Bennett. The last time Congress seriously tried to remove an abusive judge was 1804, when Jeffersonians in Congress impeached Supreme Court Justice Samuel Chase. Bennett would have liked Chase, who abused his power as a trial judge to punish critics of the previous Federalist government. The Senate acquitted Chase, which modern historians interpret as a blanket endorsement of judicial "independence," a concept which Steven VandeBrake experienced in full measure.

S.M. Oliva [send him mail] is a freelance writer and paralegal. You can read more of his coverage of the VandeBrake case and other antitrust abuses in his e-book, Irrelevant Markets, which is available at Amazon.

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