As all first semester law students know: “it depends.”
Under Pennsylvania law, when Cosby appears before Judge Steven O’Neill for sentencing later this spring, he faces up to 30 years–10 years per count. Sentencing guidelines in the Commonwealth, however, suggest that Cosby faces between 22 to 36 months in prison–none of which would be subject to any mandatory minimum construct. This means that if Cosby is sentenced to prison, he would be subject to “gain time” and not have to serve 100 percent of any sentence.
Whether the judge will sentence Cosby, once revered as “America’s Dad,” to prison will depend greatly upon how moved the court is following the Commonwealth’s and the defense’s presentation of aggravating and mitigating factors.
(The iconic “Cosby Show”)
The two clear aggaravators would include that Cosby admitted in a civil deposition to providing sedatives to women he was interested in having sex with, and the sheer number of alleged victims, which includes five women who testified and provided what is known as “similar fact evidence” of manner, “modus operandi” or “method of operation,” or common scheme or plan.
Among the mitigating factors for Cosby will be his age (80), declining health (partially blind, among other issues), and a lifetime of charitable and philanthropic acts that will be presented to offset a split public vs. private persona that would make Goethe (Faust) intrigued.
(Cosby leaving court during his retrial)
To that end, few can predict which way Judge O’Neill will go, however I noted yesterday on my Facebook page that it is rare that a defendant who is found guilty by a jury, even if previously free on bond, is allowed to remain free pending sentencing; courts usually remand defendants into custody so that they begin to accrue credit for time served. This issue led to the following tense exchange between prosecutor Kevin Steele and Cosby when Steele suggested to the Court that Cosby was a flight risk:
While one can certainly understand the emotional strain that led to such an outburst from Cosby, such evinced a hubris that could haunt him when the same court that observed his conduct decides whether to allow him to spend his final years as a free man, or as an inmate and sexual offender who would be forced to register as a sexual predator.
HOW DID COSBY GET HERE
(Cosby and a picture of Pennsylvania accuser Andrea Costand during her college years not long before she met the comedian/actor/philanthropist)
While allegations of Cosby’s sexual misconduct had been circulating for years, and included civil cases that were settled, his current legal dilemma is directly attributable to his self-styled role as America’s moralist- in-chief. Indeed, Cosby, assuming the role of Black America’s curmudgeonly grandpa, gave a number of speeches in the late 90s and early Aughts that addressed crime and poor grammatical and scholastic achievement in the Black Community. One speech in particular, given during a commemoration event for the anniversary of the Brown vs Board of Education decision in 2004, served as the basis for U.S. District Judge Eduardo Robreno to declare that Cosby was a “public moralist,” thus his primary basis for rejecting Cosby’s lawyer’s arguments that he was a private citizen whose sexual life, as admitted in a civil case deposition, should be shielded from public consumption. Judge Robreno pointed to the following words from Cosby in his Order:
“Ladies and gentlemen, in our cities and public schools we have 50 percent drop out. In our own neighborhood, we have men in prison. No longer is a person embarrassed because they’re pregnant without a husband. No longer is a boy considered an embarrassment if he tries to run away from being the father of the unmarried child.”
Because of those words, Judge Robreno ruled in 2015 that Cosby deserved “legitimate public scrutiny.” Now, three years later, with a jury having found him guilty, Cosby is on the verge of being branded a convicted felon himself and sent to prison. While my professional opinion is that he will do little to no prison time at all, the fact remains that Cosby, more than Harvey Weinstein, Donald Trump, Bill Clinton, Tom Brokaw, Roman Polanski, Matt Lauer and other famous men outed for alleged and/or admitted sexual assaults, becomes the first to have the Scarlett Letter–“C” for convict–hung like a virtual millstone about his neck.