Caging a Businessman
by Skip Oliva
by Skip Oliva: The
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
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.
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
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.
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
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.
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.
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
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
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.
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
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.
[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.
© 2012 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.