Sentence Enhancement Imposed for Bullshit

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Hot off the presses, and from a source who I think would like to remain nameless (tell me if you don’t), comes the first known example of a defendant’s sentence being enhanced because he is a bullshitter.

The sentencing memorandum in U.S. v. Schwartz is a masterpiece, drawing on sources from the Book of Exodus to St. Augustine to Professor Harry Frankfurt’s recent book, “On Bullshit.” (I would think that if the judge sentencing you mentions the Book of Exodus, or really any Old Testament book at all, you already know it’s not going to come out well.) Mr. Schwartz was found to be an “incorrigible” and “undeterrable” offender with a long history of defrauding others and ruining their lives. In fact, he committed (and was later convicted of) nine counts of bank and wire fraud while a prior fraud prosecution was pending against him. (That was Schwartz II; there had already been a Schwartz I; the nine-count conviction was Schwartz III; yesterday’s memo comes out of the fourth Schwartz, which is likely the last).

Clearly drawing on the analysis in Professor Frankfurt’s book, the court noted that the worst category of liars identified by St. Augustine was the eighth — one who “loves to lie and passes his time in the joy of lying.” (Those already wanting to argue about whether Bill Clinton and/or Karl Rove also fit in that category are on your own. I’m on vacation.) But the court agreed with Professor Frankfurt that there is someone worse than that — the bullshitter. According to Frankfurt, the bullshitter is worse because the liar at least has to know what the truth is in order to tell a lie. But the bullshitter “does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.” Because he’s not even recognizing the rules of the game, Frankfurt considers “bullshit a greater enemy of the truth than lies are.”

That is debatable, but not for Schwartz, because the court found that this described him to a “T.” Given his pattern of conduct, the court found that a sentence of 225 months was justified, so that Schwartz would not be released “until a time when most people have left their life’s work for the cooler groves of retirement.”

In a footnote, the court noted that (unlike the New York Times) it was freely using the word “bullshit” based on “the theory that readers of judicial opinions are all grown-ups.” Although I will probably have to edit it from the email update, on the theory that those who write filtering software are not.

United States v. Steven Allen Schwartz, Sentencing Memo, No. 03-35-1 (E.D. Pa. July 26, 2005) (I’ll try to get the memo posted when I can.)