Legal Commentary

There's some talk in the blogosphere about disgraced former plaintiffs attorney Bill Lerach's attempt to use a proposed class at UC Irvine's law school as part of his required community service for his federal criminal sentence.  The federal judge who heard his motion was particularly upset with Lerach, voicing discontent with Lerach's apparent lack of remorse (in contrast to the remorse he allegedly showed at sentencing) and with the general nature of Lerach's community service to date.  Apparently, doing work for the La Jolla Historical Society wasn't the type of work the judge had in mind.

For Bill Lerach, this is only a minor setback.  He'll complete his service one way or another and then move on to other things.  For future criminals who come before the same judge, however, the salience of Lerach's example may well create negative consequences.  Future claims of remorse may be (unfairly) discounted, and offers for community service may be summarily rejected.   Risk averse judges may conclude, as this one likely will, that it is simply too difficult to distinguish "truly remorseful" defendants from ones who are just faking it in the hopes of a more lenient sentence.   Notice that Lerach himself likely will never experience these costs.  They are externalities imposed by one generation of criminals on the next. 

Notice further that this is something of a one-way ratchet: when defendants follow orders and take community service seriously, it is unlikely courts will hear about it.  Probation officers likely mark them down as having completed their service and that's the end of it.  As is often the case in criminal law and procedure, the cases of malfeasance are the ones that come to the attention of prosecutors and judges, and those cases tend to stick out in our minds.  I imagine there are ways to "debias" courts of this notion (by pointing out examples of successful community service), but it's not clear to me how often or how well such debiasing might occur.