Federal White Collar Sentencing in the United States: A Work in Progress

At first blush, it seems odd for an American contributor to an international conference on sentencing to focus on high end federal white collar sentencing. After all, federal cases make up a relatively small part of the U.S. criminal justice system. (Between October 2005 and September 2006, about 1,132,290 people were sentenced for a felony in state courts, and 73,009 in federal courts.) Even within the federal system, white collar cases of all sorts are a relatively small part of a criminal docket dominated by immigration, drug, and gun cases, which together comprised nearly 73% of all federal cases in 2009. And the crimes involving fraud, deceit, theft, embezzlement, insider trading, and other forms of deception that accounted for 9.5% of 2009 cases includes a great many offenders and offenses of the middling sort. Moreover, what is meant by high end anyway? Does a vague directional reference allow one to sidestep the longstanding scholarly debate about defining white collar crime

Fragmentation in Mental Health Benefits and Services: A Preliminary Examination into Consumption and Outcomes

In this chapter, we examine consumption patterns and health outcomes within a health insurance system in which mental health benefits are administered under a carved-out insurance plan. Using a comprehensive dataset of health claims, including insurance claims for both mental and physical health services, we examine both heterogeneity of consumption and variation in outcomes. Consumption variation addresses the regularly overlooked question of how equal insurance and access does not translate into equitable consumption. Outcomes variation yields insights into the potential harms of disparate consumption and of uncoordinated care. We find that even when insurance and access are held constant, consumption of mental health services varies dramatically across race and class. We are unable, however, to find any evidence that higher levels of consumption correspond with improved health when health status is controlled. We also find some evidence of the costs of fragmentation, such as uncoordinated care, low adherence rates, and variation in sources of care. These findings have important implications for both the delivery of health services and the administration of health insurance benefits

Foreword

There is a degree of irony in calling this a Symposium on The Changing Role of the Federal Prosecutor. In perhaps its most important aspect, the role of the federal prosecutor has not changed at all – or, at least, we do not want it to change. At its core, the prosecutor\u27s job always has been to mediate between spectacularly broad, legislative pronouncements and the equities of individual cases, giving due attention to the public interest and such technical matters as evidentiary sufficiency. This continues to be true. Indeed, the full title of the Symposium celebrates our hope for continuity in this regard by paying tribute to William M. Tendy

Judging Untried Cases

That federal criminal trials are an endangered species is clear. During fiscal year 2004, only 4% (3346) of the 83,391 federal defendants in terminated cases went to trial. And, trends that Professor Ronald Wright highlights in his insightful article have continued past the end point of his data. In 1994, 4639 defendants obtained verdicts from juries and 1050 from judges; in 2003, just 2909 and 615, respectively, did so. Every time one thinks that the system has hit an equilibrium at some “natural” distribution, the trial rate goes down a bit more

Cooperating Clients

Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to “vigorously defend and try the case.” Tarlow was up to the task but warned Lopez that it was “his general policy not to represent clients in negotiations with the government concerning cooperation,” and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations “personally[,] morally and ethically offensive.” This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison in order to be with them, Lopez asked his co-defendant\u27s lawyer to initiate discussions with the government. He told his own lawyer nothing about this overture, calculating that Tarlow would serve him well if negotiations broke down and the case ended up going to trial. Sensitive to the constitutional and ethical issues raised by a defendant\u27s efforts to go behind his lawyer\u27s back but relying on a memorandum from Attorney General Thornburgh authorizing pre-indictment contacts with represented defendants, the prosecutor had Lopez brought before a magistrate, who advised Lopez of the dangers of proceeding without the assistance of counsel. Undeterred, Lopez signed a written waiver avowing his belief that Tarlow did not represent his best interests in the matter. He then met with the prosecutor and revealed the names of several alleged drug traffickers. Upon learning of Lopez\u27s meetings with the prosecutor, Tarlow withdrew from the case. Not long thereafter, Lopez, now with new counsel and evidently dissatisfied with the progress of his plea negotiations, moved to dismiss the indictment, alleging that the government had violated his Sixth Amendment right to counsel and DR 7-104(A)(1) of the American Bar Association\u27s Model Code of Professional Responsibility, which bars an attorney from communicating with a represented party without the knowledge and consent of opposing counsel. The district court found no Sixth Amendment violation,6 but it concluded that the “prosecutor\u27s actions constituted an intentional violation of the long-standing ethical prohibition” expressed in DR 7-104 and that dismissal of the indictment was the appropriate sanction for the government\u27s “flagrant and egregious misconduct.” Although the Ninth Circuit later vacated the district court\u27s order, it found fault only with that court\u27s choice of remedy and agreed with the court\u27s condemnation of the prosecutor\u27s decision to deal with Lopez behind the back, and without the knowledge, of his lawyer

Bargaining About Future Jeopardy

The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants – those who plead guilty instead of standing trial – the Double Jeopardy Clause simply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring the dynamics of such bargaining and the rules that govern it. Professor Richman begins by showing why, for most defendants, the limited scope of fifth amendment protection against successive prosecution makes little difference. If a guilty plea does not give jeopardy protection against all charges that could possibly be brought, such protection will be afforded by a standard agreement covering the scope of the indictment. And prosecutors\u27 institutional constraints will generally offer assurances far beyond those terms. For those defendants not satisfied with these protections, however, minimalist double jeopardy doctrine presents a dilemma, since a plea agreement that explicitly protects against unbrought charges can be negotiated only at the risk of exposing crimes or culpability of which the government was not aware. Drawing on recent contract literature, Professor Richman shows how this strategic obstacle will frequently lead to the creation of \u27gaps in the protection offered by specially negotiated plea agreements. The Article then turns to the rules devised by courts to fill these contractual gaps, rules generally based on due process analyses of defendants\u27 expectations or prosecutors\u27 good faith obligations. After critiquing these rules, Professor Richmnan inquires into the extent of the government\u27s obligations when it contracts with defendants and proposes a set of default rules that better reflect the realities of the bargaining process