Topic: Society

Money, Greed and Prosecutorial Discretion: The Ethics of Martha
(3/6/2004; 3/11/2004)

The surprise conviction of Martha Stewart for misleading federal investigators who were looking into allegations of insider trading raises several ethical issues that are being muddied, muddled, and bobbled by the hoards of commentators on the matter. Let’s look at them, shall we?

Stewart as a target. “If her name were Martha Smith, this never would have come to trial,” asserted one talking head on MSNBC in the wake of the verdict, implying that Martha has been unfairly targeted because of her celebrity. No, T.H., she has been fairly and appropriately targeted because of her celebrity. Maintaining ethical and legal norms is one of the jobs of the government, and the prosecution of prominent people makes a much greater impact on everyone else than the anonymous prosecution of an average citizen. Cheating and lying to the government about it is, sadly, too widespread to apprehend everyone doing it. The next best thing is to make an example out of a famous person. Message: “Don’t count on getting away with this stuff. It’s wrong. It’s also illegal.” In ethical terms, the argument that one ought to escape punishment because others do is unsustainable. To quote another celebrity in the criminal law system, Robert Blake during his salad days as “Baretta:” “Don’t do the crime if you can’t do the time.” If you do it and get punished, you can complain that you were unlucky, and you can make the point that others ought to be punished too. But you can’t argue that your own fate is unjust.

If “Everybody Does It”, Why Hold Martha to a Higher Standard? This was a popular “talking point” of Bill Clinton’s talk show squad during the Monica Lewinsky mess. When celebrities are held to a lower standard, that is, are allowed to get away with murder (literally in O.J. Simpson’s case) because people like them and they have contributed so much to society or the culture, it undermines the basic principles of justice and democracy. Those with money, power, fame and influence don’t have to obey the rules under such a system: you get punished according to how valuable you are, or were. This rots the roots of our social contract, and leaches all integrity out of the legal system. Unfortunately, conditions are firmly in place that already give the famous a huge advantage in rule-breaking: they have money to defend themselves; they have powerful friends, and the public unwittingly reinforces a lower standard for celebrities because they are in the grip of cognitive dissonance (see Tools). We generally like and admire celebrities, so we don’t want them to be rapists, or child-molesters, or perjuring sexual harassers. That public good will adds to the forces making it difficult to hold celebrities to the same standard as the rest of us, much less a higher standard.

A higher standard is deserved, however, because the ethical and legal conduct of the famous, popular and powerful have unusual power to change public attitudes for good or ill. They are role models and standard bearers, and one of the things you owe American society when it makes you successful is to use your publicity well. Martha Stewart is successful and wealthy; she has access to good legal advice and has presumed to take on the role of icon, teacher and guru. She has no excuses, and her bad conduct resonates throughout the culture. With privilege comes responsibility, and she didn’t meet hers.

Is it Wrong to Be Rich? From the beginning of human civilization, the rich have been the object of both envy and scorn, an easy target for politicians and social reformers, and presumed villains whenever their motives come into question. The ethical presumption behind this attitude is that the rich must value money above all else, or why would they be rich? And if they value money above all, then the rich must be unethical and bad people, because the pursuit of wealth is not on anyone’s list of moral or ethical values. Certainly, there is some validity to this presumption in many cases. It is clearly unfair, however, to automatically denigrate the character of the wealthy, for many acquire wealth incidentally to their success at important and societally useful pursuits. Martha Stewart is in this category. Her crime, however, was not in becoming rich, but breaking the law to become richer. As most of us cut the Jean Valjeans among us ethical slack when they steal bread for a starving family, we recoil at the unalloyed greed of someone who cheats to get money that they do not need. That revulsion is appropriate to the conduct.

Is it Wrong to Be a Successful Woman? The claim that Stewart’s prosecution is just another example of “the-powers-that-be” setting out to punish a successful woman is an accusation without merit or logic. Keith Olberman, who is smart enough to know better but careless enough to do so anyway, noted that Oprah Winfrey, Rosie O’Donnell and Martha Stewart all had been brought into court in recent years. Could this be misogyny, he mused? Absurd, even for musing. Oprah was sued by the meat industry after she impugned beef on her show; Rosie got into a messy but predictable court battle over the collapse of her magazine, and Martha was caught dumping stock after a tip from a broker. Even the most skilled conspiracy theorist would be stumped finding a connection. Martha’s defenders say she is being penalized for being a woman; Mike Tyson claims that the world is against him because he is black; Howard Stern says the reason the FCC wants his head is because he opposes President Bush, not because he has slimed the airwaves. Taking responsibility for one’s mistakes, misjudgments and misdeeds requires courage, humility and accountability, ethical values all. Martha Stewart has not admitted wrongdoing, but at least so far she has not blamed her troubles on some sinister bias. If she has not prompted others to do so on her behalf, that is a big point in her favor.

Were the Prosecutors Motivated By Ambition? Oh, who knows for certain? Ambition is one of those motivations that frequently conflicts with independent professional judgment, just like greed, revenge, personal loyalties, love, hate…you know the list. But professionals are also required to be aware of those motivations in themselves, put them aside, or withdraw from the task if they cannot. Absent evidence, no professional should be presumed to be motivated primarily by ambition, and prosecutors are subject to a Code of Ethics that specifically prohibits such conduct.

There is something else. High profile prosecutions do have the potential to make careers, but also the potential to destroy them. Consider Chris Darden’s painful co-starring turns in made-for-TV movies, or Marcia Clark’s halting career as a TV pundit. Prosecutors have a tough job [DISCLOSURE: the writer was one for a while], and just because they occasionally benefit from their role in a high profile case should not mean that every big prosecution is inherently suspect.

How Can Stewart be Prosecuted for Lying about a Charge That Was Never Brought? You can be prosecuted for breaking out of prison when you are innocent; you can be prosecuted for resisting arrest when the police are mistaken. You can be prosecuted for breaking into someone’s house to take back what was stolen from you, and you can go to jail for hampering a federal investigation even when it doesn’t itself result in an indictment.. A prime ethical value is citizenship, which includes not lying to law enforcement officials.

By the way…there is little doubt that Stewart violated the spirit, and quite probably the letter, of the insider trading statutes. If she wasn’t prosecuted for this, she should just say, “Thank-you.” It doesn’t make her other conduct less serious, or more ethically or legally acceptable.

Why Fry the Small Fish While the Big Fish Play? "Ken Lay hasn’t been prosecuted yet," the argument goes, "Why pick on Martha?" There are some logical answers to this. Simple crimes like Martha’s are easier to prosecute, take less time to prepare, and require fewer resources than the mega-swindles of the Adelphia or Enron gangs. It has taken a while, but the corporate crooks are getting their just desserts, slowly, one at a time. The real answer to this complaint is that it’s a dodge. The only valid question is whether Martha Stewart cheated, lied, and broke the law. If so, she deserves her punishment. The issue of why greater offenders escape punishment is important, but it has nothing to do with Martha Stewart.

Isn’t Her Punishment Out of Proportion to Her Crime? When the dust clears, Martha Stewart is likely to lose in excess of 400 million dollars, her TV shows, her status as a cultural icon, her corporation, her freedom and her dignity. “How can this be right?” people are asking. “Hasn’t she suffered enough?” If we decided that the fair way to punish criminals would be to take into consideration how much they stand to lose by the very fact of their conviction, then prominent, wealthy, and successful people would always receive light sentences, while we would be especially harsh on the homeless, the unemployed, the sick and the poor, for whom the punishment, in relative terms, is less of a hardship. Those who have more to lose by breaking the laws lose more, it is true. But the risk was theirs. It is up to the legal system to levy appropriate punishment for the crime in its totality, not to custom-design punishments to achieve some kind of threshold level of suffering. Too often, judges have used poor judgment by being lenient in sentencing the rich and famous. It has undermined belief in the system. There is seldom an excuse for breaking the law, but the wealthy and successful deserve less sympathy than a criminal who has struggled to survive. As the story has unfolded, it has become clear that Stewart was always in command of her own fate. Her losses cannot be blamed on an unjust legal system now.

Join the discussion about this article

Comment on this article

Comment on this article


Business & Commercial
Sports & Entertainment
Government & Politics
Science & Technology
Professions & Institutions

The Ethics Scoreboard, ProEthics, Ltd., 2707 Westminster Place, Alexandria, VA 22305
Telephone: 703-548-5229    E-mail: ProEthics President

© 2007 Jack Marshall & ProEthics, Ltd     Disclaimers, Permissions & Legal Stuff    Content & Corrections Policy