Martha Stewart and Kobe Killer: Let the Punishment Fit the Crime

Daniel P. Dolan (Principal, Communication Japan)

This "sends a message to bigwigs in corporations. They have to abide by the law. No one is above the law."
-- juror commenting on decision in Martha Stewart trial.

"Everything you do must be a run of penance."
-- excerpt from statement by judge to "Kobe Killer".

In a court decision surprising for its severity, popular lifestyle guru Martha Stewart was found guilty March 5, 2004 on all four counts against her in her high-profile stock fraud trial. Slapped with conspiracy, obstruction of justice, and two charges of making false statements to government officials, 62-year-old Stewart will almost certainly go to prison for her crimes.

Specifically, government investigators claimed that Stewart sold approximately 4,000 shares of ImClone stock worth about $230 thousand on December 27, 2001, one day after receiving inside information that the U.S. Federal Drug Administration would not be approving an ImClone drug. By getting rid of those shares Stewart averted a loss of approximately $51 thousand.

Although Stewart's alleged actions had no apparent adverse effect on other persons or companies and was purely a bid for personal financial gain, most observers believe that her company, Martha Stewart Living Omnimedia, has suffered severe brand damage and might not survive long-term. In fact, one day after announcement of the guilty verdict the company's share price dove 23%.

Her prison sentence? Stewart could serve a maximum of 20 years, but legal experts are guessing that the actual sentence will be in the range of 1-2 years.

"Kobe Killer" Released on Probation

Fast forward to March 10, 2004, the day the so-called "Kobe Killer" was released from a juvenile medical reformatory on probation until the end of December 2004. Now 21-years-old, the man was just 14-years-old when he was arrested for the brutal slayings of a 10-year-old girl and 11-year-old boy, and non-lethal attacks on three other children. The murdered girl was struck on the head with a hammer, and the killer placed the decapitated head of the boy outside the gate of the boy's elementary school. The killer also taunted police with notes daring them to catch him.

At the time of his arrest, the accused boy was diagnosed as suffering from sexual sadism, and according to a March 14, 2004 Japan Times article claimed that "fighting and destruction" are hallmarks of human society, adding that "the strong are allowed to kill the weak."

Despite the almost incomprehensibly horrible crimes he committed at such an early age, the Kanto Regional Parole Board apparently based its decision to release the killer on probation on reports by reformatory officials who noted that the man "is now capable of communicating smoothly" with others, and successfully completed training that involved growing plants and penning a personal history. In a statement to journalists on the day of the man's release, the chief of the parole board even stated that "society's understanding and cooperation are indispensable".

Not so fast. How do you reassure parents of the murdered children and people who live in the local community that the man who committed such vile crimes just seven years earlier is now "truly rehabilitated"? The Japan Times article mentioned above also reports the man's recent claim that he now "wants to live in society in the company of warm-hearted people". This would sound like a joke if it were not so serious. Signs of atonement are perhaps important for parents of the murdered children, but should not cloud the atrocious facts of the case. Is it enough to apologize for the murder and beheading of a child? Authorities and citizens should recognize that such obvious mental illness is not easily apologized away without proper medical treatment, and even with drug therapy or other interventions there are always serious questions about the possibility of relapse. Assuming that tending plants alone does not quality as medical treatment, citizens should demand to know exactly what treatment the man has undergone and on what specific factors the probation decision was based. Expressions of remorse by the murderer should count for little when public safety is so clearly at risk.

Let the Punishment Fit the Crime

The cases described above point to differences in the criminal justice systems of Japan and the U.S., but also suggest some general logical inconsistencies. If we can agree that the central purpose of putting individuals in prison should be to separate dangerous persons from the rest of society, prison time for Martha Stewart makes no sense. Punish her for her greedy actions, but why not tailor the punishment to directly reflect her crime? Here is my proposal for Martha Stewart's case. Stewart's net worth currently is estimated at approximately $326 million, down from approximately $576 million the day before the guilty verdict. She spent years building a dynamic media empire, and she is widely admired for her high-quality products and uncompromising standards. Why not allow her to continue doing business, but take away from her exactly what she hoped to gain by her wrongdoing. For example, begin with a painful monetary fine. Then rather than put her behind bars for one year or so, have government auditors take control of the finances of her companies for one year, with every dollar of revenue beyond necessary business expenses collected for distribution to selected public service programs, charities, or education initiatives. Let her do what she is good at, but let only society benefit for some specified amount of time.

In contrast, a young man who brutally killed two children has at least some freedom of movement among regular society. The Kobe Killer can "repent" every day for the rest of his life, but this does not necessarily make the rest of us any safer.