The House of Representatives should immediately impeach Judge Mark W. Bennett of the U.S. District Court for the Northern District of Iowa. This past February, Bennett committed one of the most astonishing abuses of power I’ve seen in over 10 years of covering antitrust policy. He sentenced a defendant in a federal “price-fixing” case to double the prison sentence recommended by the Justice Department’s Antitrust Division based entirely on his personal disagreement with historical sentencing guidelines in antitrust cases — and the fact that the defendant was a rich, Caucasian male. While Bennett’s actions are currently on appeal to the Eighth Circuit Court of Appeals, the House has every right to get this maniac off the federal bench without further delay.
In April 2010 the Justice Department charged Steven VandeBrake with one count of “price-fixing” in violation of the Sherman Act. Mr. VandeBrake ran a family-owned concrete company in Iowa. The DOJ said that over a three-year period, VandeBrake entered into several voluntary agreements with competitors to charge similar prices for certain ready-mix concrete products. The DOJ estimated the entire volume of commerce “affected” by these agreements at about $5.6 million.
VandeBrake signed a plea agreement whereby the Antitrust Division recommended a prison sentence of about 1 1/2 years and a fine of $100,000. The case was assigned to Bennett, a Democrat appointed to the federal bench by Bill Clinton, who didn’t bother to review any of the facts — Mr. VandeBrake had never even appeared in court — before announcing in open court he would reject the plea agreement. At a May 2010 hearing, Bennett explained he rejected the recommended sentence simply because it infringed on his “discretion” to decide for himself how long Mr. VandeBrake should rot in prison. Bennett said he saw this as a “separation of powers issue,” and that as a matter of “judicial philosophy” — and not based on the facts of the case — he was “not willing to give up his discretion.” Bennett then went on to mock the lead prosecutor’s lack of experience with trials and sentences relative to the Great Judge himself:
My question is why should I defer to someone with such little, infinitesimal experience? You could be the greatest lawyer since Clarence Darrow. That remains to be seen. But I’m saying based on what you’ve told me you have zilch, nada, none, virtually no real-world experience. So why should I defer to your judgment about how the [sentencing] factors would apply in a case?
Bennett was so incensed that a week later, he continued to complain about the Division’s plea agreement with Mr. VandeBraks while presiding over a completely unrelated case. And to add insult to injury, Bennett told the lawyers in the unrelated case that Mr. VandeBrake was apparently guilty of things the Antitrust Division never accused him of:
[VandeBrake] said if you don’t participate in the Sherman Act antitrust scheme we’ll put you out of business, so either fix prices with us or we have leverage to put your company out of business. So he used his market share, his market power, and the fact that he was violating the antitrust laws to threaten a legitimate company that wasn’t violating the law to either go along with it or to put him out of business. And then the government waltzes in and recommends a 19-month sentence.
In other words, Bennett said Mr. VandeBrake engaged in coercion. But the Antitrust Division never said any such thing. The government only accused Mr. VandeBrake into entering voluntary agreements with competitors regarding prices.
When Bennett finally sentenced Mr. VandeBrake, the judge substituted character assassination for legal reasoning:
Writer Pearl S. Buck cogently observed in her novel The Good Earth, “Hunger makes a thief of any man.” Defendants Steven Keith VandeBrake and Kent Robert Stewart came before the court for sentencing on February 8, 2011, for violations of the Sherman Act, 15 U.S.C. § 1. Neither defendant, however, suffered from hunger, at least as Pearl Buck knew it, but from insatiable greed, which is all the more shocking because both were already wealthy, multi-millionaire businessmen. Sir Francis Bacon wrote, “Opportunity makes a thief.” While Stewart’s greed was at least tempered a modicum by Stewart’s misguided motivation to ensure the jobs and livelihood of his employees, VandeBrake’s appalling greed knew no such bounds and was fueled by the unique ease and opportunity that his industry, concrete sales, gave him in establishing a concrete cartel in northwest Iowa. The defendants, although dressed in the attire of hard working businessmen, were nothing more than common thieves, and serial ones at that. Like a neighborhood thief, they stole from friends, acquaintances, businesses and local governments The defendants tools of their trade were not dark clothing worn in midnight burglaries facilitated by pry bars and screw drivers. Instead, in ordinary business attire and in the glare of broad daylight, they used the ordinary communication tools of modern commerce and business, cell phones, Blackberries, and e-mail to rob their victims. Unlike the neighborhood thief who values high end TV’s, computers, jewelry, and furs, the defendants specialized in cold hard cash. Unlike the neighborhood thief whose victims immediately recoiled in shock at the loss of their property, the defendants stole from their victims without them ever knowing it.
Now the basic problem here is that Mr. VandeBrake didn’t “steal” anything. “Price-fixing” is not fraud or theft, despite Bennett’s repeated wishes that were so. Mr. VandeBrake was accused of charging more for his goods than the government would have liked him to charge. But it’s not as if Mr. VandeBrake took people’s money and gave them nothing in return. Yes, he apparently entered into voluntary exchanges of information with other individuals selling the same product as him. Freedom of speech and association are supposed to be protected from government encroachment by the First Amendment. More to the point, Mr. VandeBrake has every right to determine the disposition of his own property — even if that involves entering into agreements with similarly situated property owners. To say what happened here was “theft” is an outright lie.
Yet the core of Bennett’s opinion was that “price-fixing” should be treated just as harshly as fraud, even though neither the law nor the Antitrust Division demand as much. Bennett said he disagreed with this “sentencing policy,” so he demanded Mr. VandeBrake spend four years in prison — more than double the government’s recommendation — and pay a fine of nearly $830,000 (three times what the DOJ sought) to correct what he considered the improper disparity between fraud and antitrust sentences:
One cannot 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.
So Mr. VandeBrake will spend an additional two-plus years in jail because he’s a white male who unfairly benefitted from the 1890 Congress’s “leniency” towards antitrust sentencing. (Bennett himself is white, incidentally.)
In justifying the four-year prison sentence — which, by the way, ties the record for the longest pure antitrust sentence ever imposed in the US — Bennett grasped at all manner of straw to show why Mr. VandeBrake was a truly evil man. First, Bennett said, it would be one thing if Mr. VandeBrake fixed prices for a “luxury” — but this Godless bastard fixed prices of “concrete,” which people need to build buildings!:
[C]oncrete is employed in the construction of significant portions of our nation’s infrastructure. Indeed, one would be hard pressed to gaze in any direction in a modern city and not see an architectural structure which does not have as a component, some concrete. Moreover, in many instances, there will be no reasonable substitute for concrete. For instance, any individual or family seeking to build a new home, or a community planning to construct a new school, will be required to purchase concrete for their new building’s foundation. Thus, the price of concrete in turn determines the price of all projects in which it is used and has a secondary effect on our economy. Excess monies spent on VandeBrake or his co-conspirator’s overpriced concrete deprived their concrete purchasers of the option and ability to spend those lost monies on other products. This is particularly troublesome when one considers the fact that a number of projects that VandeBrake rigged bids on were public works. By rigging bids on these public works projects, VandeBrake effectively robbed several local governments of monies that could have been used for the betterment of their communities. Given VandeBrake’s utter lack of involvement in any charitable or civic activities, this is hardly surprising.
It never occured to Bennett that Mr. VandeBrake might actually be performing a greater “charitable or civic” function by, y’know, providing concrete to people in the first place. Nor did it cross Bennett’s mind that local governments ever waste money on unnecessary, ego-driven projects. If the state does it, it must be for the “betterment” of the community, while anything Mr. VandeBrake does is motivated by his intrinsic evil and lack of a social conscience.
There is also no “necessity” factor in determining antitrust sentences. As Mr. VandeBrake’s counsel noted in their appeal brief, “It strains reality to suggest, as the district court implicitly did, that Americans are significantly more dependent on ready-mix concrete than they are on vitamins, air transportation, citric acid, milk, gasoline, and refrigeration,” all of which have been the subjects of previous criminal “price-fixing” cases. And no judge in any of those cases saw cause to impose a four-year prison sentence on antitrust charges alone. To the contrary, even in cases where the total volume of commerce affected was substantially higher — that is, international markets versus the highly localized concrete market in northwestern Iowa — no court ever imposed as high a sentence as Bennett did on Mr. VandeBrake. (The average sentence, according to VandeBrake’s appeal brief, is 7-8 months, as opposed to the 48 months he received.)
Ultimately, Bennett simply saw Mr. VandeBrake as a target of opportunity — a scapegoat for the judge’s arrogant belief in his own righteousness and the error of Congress’s ways:
I appear to be the first federal judge to consider varying upward from the Sentencing Guidelines based on my policy disagreements with the Sentencing Guidelines’s relatively lenient treatment of antitrust violations when compared to fraud sentences. This action, by changing the status quo of antitrust sentences, will understandably result in a sentencing disparity between the defendants here and those sentenced previously.
This is legislating from the bench at its scariest. Bennett’s actions, if left unchecked, provide a license to every federal judge to impose draconian antitrust sentences based on his or her personal perception of a defendant’s wealth and background. By Bennett’s admission, he punished Mr. VandeBrake not for what he did, but because he came from a wealthy family and was motivated by “greed.” This was a pure witch-hunt on Bennett’s part.
Regardless of whether the Eighth Circuit overturns Mr. VandeBrake’s sentence, Mark Bennett should never be allowed to stand in judgment of another human being again. He abused his power in such a flagrant, heartless and ignorant manner, that impeachment is the only just remedy.