Is the White Collar Offender Privileged?

Much public commentary has asserted or implied that the American criminal-justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not accurate—at least not in the ways commonly believed. Law and practice of sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges in white collar cases easier to bring and harder to defend against than in other cases. Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure to criminal liability. Corporate actors enjoy a large advantage in legal-defense resources relative to others. That advantage, however, does not pay off quite as one might expect. A fully developed claim of privilege can be sustained only by showing that basic American arrangements of criminal law and policing have been misguided. This argument would fault the justice system for failing to treat illegal behavior within firms as requiring omnipresent policing, looser definitions of criminality, the harshest of punishments, and rethinking of the right to counsel. Those who believe corporate offenders are privileged should confront the difficulties that argument entails. And they should be aware of the complications that follow from overreliance on punishment to deal with intractable problems of ex ante regulatory control

A Question of Costs: Considering Pressure on White-Collar Criminal Defendants

Because of the expense of defending white-collar criminal cases, individual corporate defendants can rarely fund their own defenses and often rely on their employers to pay their legal costs. Employers, however, often feel pressure to refuse to pay their employees\u27 attorneys\u27 fees. When employers decline to pay their employees\u27 defense costs, defendants can be, in effect, coerced into pleading guilty because they do not have the financial resources to defend themselves at trial. Commentators have discussed the problem of pressure on white-collar defendants but have not traced the cause of the pressure back to one of its most basic roots: criminalizing conduct that is prohibitively expensive for an individual to defend. Others have addressed the question of whether corporate behavior has been overcriminalized but have not focused on the high cost of defending these crimes as one of the key arguments against criminalizing the behavior in the first place. This Note intertwines the two strands of the debate over corporate crime: the strand evaluating the existence of and solutions to pressure on individual white-collar defendants and the strand questioning the overcriminalization of corporate law. This Note adds to both strands by focusing on one aspect, high defense costs, that contributes to the pressure, makes it unique to corporate crime as opposed to street crime, and puts it out of the reach of commonly suggested procedural fixes. The Note concludes that white-collar criminal prosecutions inherently place financial pressure on defendants, and legislatures should consider this pressure when deciding what behavior to criminalize

Fifteen Years after the Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing Perspectives on the Federal Sentencing Guidelines and Mandatory Sentencing

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same time, average sentence length appears to be falling slowly as judicial tendency to use the authority granted in the United States Sentencing Guidelines (the Guidelines ) to mitigate sentences through downward departures appears to be increasing

Our Administrative System of Criminal Justice

To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue. The fourth piece selected by the Board is Our Administrative System of Criminal Justice, an article written by Gerard E. Lynch that is among the most cited works in the Law Review’s history. This article illustrates how the practice of plea bargaining blurs the boundaries between adversarial and inquisitorial criminal justice systems. Judge Lynch now sits on the Second Circuit having eventually succeeded the late Judge Joseph M. McLaughlin, who also is honored in the pages of this book for the permanent mark he left on Fordham Law School and the Law Review. We think it is fitting that the Law Review feature two of the many contributions that judges of the Second Circuit have made to legal education and scholarship in this issue

No Older \u27N Seventeen : Defending In Dylan Country

This article is about an actual experience the author had defending a teenager accused of a serious crime where Bob Dylan grew up-- the Minnesota Iron Range. In order to protect the young man\u27s privacy, it does not divulge the actual time period of the case. Likewise, details about his life and the charges he was facing have been changed. His name has been changed to Jamal. Things did not go well for Jamal. Though a child when he was sent from the juvenile jail outside of Washington, D.C. to a secure treatment facility for serious juvenile offenders in the Iron Range, Jamal was ultimately tried and convicted as an adult and sentenced to many years in prison

Can You Be a Good Person and a Good Prosecutor?

Somehow, it is understood that prosecutors have the high ground. Most people simply assume that prosecutors are the good guys, wear the white hats, and are on the right side. Most law students contemplating a career in criminal law seem to think this. It could be that most practicing lawyers think this, as well. Prosecutors represent the people, the state, the government. This is very noble, important, and heady stuff. Prosecutors seek truth, justice, and the American way. They are the ones who stand up for the victims and would-be victims, the bullied and battered and burgled. They protect all of us. Defenders are always on the defensive. In a social climate that exalts crime control over everything else, defenders are barely tolerated. It is sometimes hard for the public to distinguish defenders from the scum we represent. We are often seen as our clients\u27 accomplices or, at best, their apologists. Much has been written about whether you can be a good person and a good defender--that is, whether it is morally acceptable to defend people who do bad things--and what the personal and professional dilemmas are for those who engage in such work. Almost nothing has been written about whether you can be a good person and a good prosecutor--that is, whether it is morally acceptable to prosecute people who do bad things. At the heart of this question is the reality that prosecution inevitably leads to punishment, which, in recent times, means locking people up (especially some people) for very long periods of time, and, with increased regularity, executing them. In this article, the author examines the morality of prosecution. First, she explores the context of criminal lawyering at the millennium and what it means to prosecute under current conditions. Then, she discusses whether it is possible to do good in this context--that is, whether a well-intentioned prosecutor can temper the harsh reality of the criminal justice system--in view of the institutional and cultural pressures of prosecutor offices. The author concludes by answering the question she poses in the title of this article and addressing some likely objections

Discontinuous Tradition of Sentencing Discretion: Koon\u27s Failure to Recognize the Reshaping of Judicial Discretion under the Guidelines, The

Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise of judicial discretion in federal criminal sentencing exemplifies the problems arising from those inadequate analyses. The Sentencing Reform Act of 1984 ( SRA ) dramatically altered federal criminal sentencing for the express purpose of controlling judicial discretion. Judges were once free to impose any sentence from probation to the statutory maximum and were not subject to appellate review regarding the length of that sentence. However, they are now bound by the Sentencing Guidelines 7 and subject to appellate review of the sentences they impose. Despite this dramatic change, or perhaps because of it, the Supreme Court has used the breadth and uncertainty of the concept of discretion to paper over the fundamental reallocation of sentencing power in an effort to buttress the limited authority judges retain to individualize sentences