Monthly Archives: October 2014

White Collar Criminal Sentences: How Long Is Too Much?

(Daniel Solove) An article in the New York Times discusses the debate over the increasingly long sentences for those convicted of white collar crimes:

Bernard J. Ebbers, the former chairman of WorldCom who was convicted of masterminding an $11 billion accounting fraud that bankrupted the company, was sentenced to 25 years in prison.

Because Mr. Ebbers is 63, some have contended that the sentence amounts to a life term. Likewise, John J. Rigas, the 80-year-old founder of Adelphia Communications, was sentenced to 15 years.

“You have to ask yourself whether the proof in these cases warrants such a sentence,” said Otto G. Obermaier, a former United States attorney in Manhattan, who had been an aggressive prosecutor of white-collar crimes when he ran the office from 1989 to 1993. “Ebbers’s sentence moved the goal posts pretty far back. You can describe it as a pendulum switch, but it is an overreaction.” . . .

No lawyer is suggesting that white-collar criminals not serve time. Rather, lawyers and jurists are asking what the appropriate sentence is for white-collar crimes relative to punishments for other crimes in a post-Enron world.

The article continues with some quotes from Jonathan Simon (law, Boalt) who compares the punishments of white collar crimes to drug crimes and notes that “both represent increasingly irrational and inhumane levels of punishment.” 

Quite frankly, I have a hard time feeling upset about the lengthy sentences being doled out to white collar criminals these days. For decades, those convicted of drug crimes have been sentenced to prison for extremely long periods of time, even for amounts of drugs with not a very high monetary value.   In contrast, white collar crimes have often been punished lightly, in prisons that resemble boarding school.   

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Why the Necessity Defense is Unneccesary

From a deterrence standpoint, I’ve never understood why there is such a thing as a necessity or duress defense in criminal law. The deterrence view of criminal law is that we choose punishments to deter judgment-proof individuals from committing acts that harm social welfare. If this is the case, then why bother with the necessity defense.  A harmful act is a harmful act, whatever the reason it was committed. There is no reason to allow harmful acts because we think the reasoning behind them was good.

Suppose a car with a deathly-ill passenger races through a red light en route to a hospital. If the driver was “charged” with the crime, she could plead necessity and get off with nothing. But the fact remains that she went through a red light and caused social harm. Accidents are more likely because of the violated red, however good the motive behind the violation. So I would argue that we should get rid of the necessity defense in this context. 

If we charge the driver with running the red light, then she would still probably run the light; the benefit of getting to the hospital sooner exceeds the cost of the ticket. In other words, the social benefit of the violation is greater than its cost. But this is not a reason for dropping the necessity defense. We want the driver to weigh the cost of running the light against its benefit. The best way to do that is to exclude the necessity defense and let the driver make the determination.

This analysis echoes the strict liabilityvs. negligence debate in tort law. The necessity defense is basically a negligence defense. The driver may have caused harm, but she wasn’t negligent, and therefore she should get off. I am arguing for strict liability. If you run the red, you pay the penalty, even if we think running the red was a good idea. When it comes to dangerous activities (such as running red lights), strict liability has some big advantages (such as its ability to engender efficient activity levels). Basically, dumping the necessity defense is the best way to insure that “desirable” crimes are only committed when they are truly desirable.

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Same Crime, Different Sentence

One of the many interesting questions in the world of post-Booker federal sentencing is whether a judge, in sentencing one defendant, is required (or permitted) to take into account the sentences imposed on codefendants. Yesterday, the Third Circuit issued an interesting opinion on this question. (Doug Berman has an excerpt and link to the opinion here.) In United States v. Parker, the defendant received a sentence of 349 months, while his codefendants in the drug trafficking case received only 86 and 180 months. Parker argued this his sentence was “unreasonable” (the post-Booker standard for appellate review of sentences) “because it failed to take into account ‘the need to avoid unwarranted sentence disparities mong defendants with similar records who have been found guilty of similar conduct’ as provided by [18 U.S.C.] 3553(a)(6).”

I have argued elsewhere that (a)(6) should not be read to encompass codefendant disparities, so I was not unhappy that the Third Circuit rejected Parker’s argument. Yet, while the court did not require codefendant sentences to be considered, the court did indicate that judges were permitted to take the factor into account. I am a big fan of increased sentencing discretion post-Booker, but I am troubled by the prospect of a sentencing judge saying something like this: “I see, Mr. Defendant, that your guidelines sentence is about 20 years, but your coconspirator, whom I sentenced a few months ago, got only 10 years. So, I’ll split the difference and give you 15.” (For an example of a real case in which the judge seemed to be doing just that (United States v. Strange), see my article linked above.) This approach seems to make the sentence depend on the vagaries of who gets prosecuted and sentenced first–precisely the sort of arbitrariness that the guidelines were intended to eliminate.

Get to know about criminal law defense and what to do to protect yourself if you are being charged with a crime here

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(Mark Drumbl) There’s been a lot of talk about the referral by the United Nations Security Council of the Darfur situation to the International Criminal Court(ICC).  Yet, the ICC is involved in more than just Darfur.  Its first case, now moving toward trial, involves a Congolese national, Thomas Lubanga Dyilo, who is in custody at The Hague. Lubanga is accused as a co-perpetrator of conscripting and enlisting child soldiers to fight in Ituri, a region in north-east Democratic Republic of Congo (DRC).

On January 29, 2007, a Pre-Trial Chamber of the International Criminal Court confirmed charges against Lubanga.   Although the Lubanga Pre-Trial Chamber moved the case to trial, the judgment was controversial. In part, this was because the judges held certain phases of the Congolese conflict to be international as opposed to internal in nature, owing to the presence of Ugandan and Rwandan troops.  International criminal law differentiates internal from international armed conflict. The Pre-Trial Chamber in fact substituted a charge brought by the Prosecution with a slightly different charge applicable in international armed conflict. This substitution, however, has considerable implications for the burden of proof the Prosecution will have to discharge at the actual trial.

The Prosecution is appealing the ruling. It does not believe it can prove beyond a reasonable doubt that an international armed conflict actually existed at the relevant time.  An American Society of International Law Insight reports that the Prosecution, in its application for leave to appeal, pleads that the Pre-Trial Chamber “is effectively forcing the Prosecution to, contrary to its professional assessment, include a specific crime in its charging instrument and prove it at trial.”  Controversy also has separately emerged on questions of defense representation.

This is not the first time that tension has emerged between judges and the Prosecution in regard to this case. An earlier decision on victims’ involvement, in which the judges sided with a generous interpretation of the provisions of the ICC’s constitutive document (the Rome Statute) permitting victim participation in the proceedings, also encountered Prosecutorial resistance.

More about criminal defense here.

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Feige on Nifong, Prosecutorial Misconduct & Attorney Discipline

(Laura) I caught an interesting piece on Slate this morning, “One-Off Offing,” written by David Feige, whom I met during our days as public defenders in the Bronx. David writes about Mike Nifong’s disbarment following the Duke rape case debacle, and argues that “you won’t see a disbarment like Mike NiFong’s again,” because “it is tempting to chalk the whole incident up to an unusual and terrible mistake — a zany allegation taken too seriously by a run-amok prosecutor.” In reality, David opines, “[p]rosecutors almost never face public censure or disbarment for their actions,” and “the [Duke case] drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.”

David writes a sharp, insightful piece, and I don’t dispute his points that prosecutorial misconduct happens too often and that the legal profession has been unfortunately disinclined to treat even serious instances of prosecutorial misconduct as a disciplinary issue. But, I think David may overstate his case for prosecutorial misconduct in a way that undercuts the strength of his overall position.

David’s Slate piece may convey the impression to many readers that shady practice is the cultural norm for many if not most prosecutors — an impression consistent with the impression he often coveys of the criminal justice system as a whole on his blog, Indefensible, and in his identically-titled book describing his practice experience in the Bronx. David acknowledges in his Slate piece that that “[h]ow often [misconduct] actually happens is hard to say,” but he suggests that “in the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don’t arise.”

I practiced from 1994-2005 as a public defender in the Bronx and Manhattan, where David practiced too, and I simply have a different big-picture impression of prosecutors. Prosecutors are asked to strike a pretty tough balance: vigorously advocate against the guilty, but remain objective and even non-committal too, so as not to overlook evidence of innocence or mitigation. I have thought that some defense attorneys too easily criticize how most prosecutors conscientiously endeavor to strike this balance that the defense bar itself is not asked to replicate. In my experience, most prosecutors work very hard to achieve a fair balance, and generally do a pretty good job at it — even in the many cases where I disagreed in some way with a prosecutor’s decision of how to handle a client’s case. I just don’t recall too many prosecutors who wouldn’t listen to what I had to say, wouldn’t think hard about their cases, or who wouldn’t share exculpatory evidence. In other words, I haven’t met too many prosecutors who acted anything like Nifong.

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Defending “Dollar” Bill

(Stuart Green) One of the reasons that I merely teach and write about white collar crime, rather than actually represent any white collar defendants, is that I lack the kind of imagination and hubris that are necessary to do a really effective job at the latter.  Consider the task confronting lawyers for Louisiana Congressman William Jefferson, charged last week with sixteen counts of conspiracy, bribery, wire fraud, money laundering, obstruction of justice, racketeering, and violations of the Foreign Corrupt Practices Act.  Jefferson, alleged to be at the center of a complex scheme of using his influence as co-chair of the congressional Africa Investment and Trade Caucus to broker deals in various African nations and demand kickbacks for himself and family members, was caught on camera in a hotel garage accepting a payment of payment of $100,000 from an FBI informant, and later found to have $90,000 in marked bills in the freezer of his Washington home. 

Jefferson has now pled not guilty.  If you were Jefferson’s defense lawyer, what kind of defense would you offer?  As I say, I doubt I’m clever enough to come up with a very good answer.  But, based on statements by Jefferson and his lawyers, we can discern the foundation for an interesting two-pronged strategy. 

The first prong is the classic “this was merely aggressive business behavior rather than criminal conduct” defense that is so often used in white collar cases (and which, if you’ll excuse some self-promotion, is dealt with extensively in my recent book).   In bribery cases, defendants typically argue that alleged bribes were really just campaign contributions.  Given the nature of the payments here, that defense seems all but impossible. Instead, Jefferson apparently intends to make the only slightly more plausible argument that, in representing various American companies that were interested in doing business in Africa, he was acting as a private businessman rather than as a member of Congress.

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Analyzing Family Ties Burdens: A Framework

(Dan Markel) In two previous posts, Ethan, Jennifer Collins and I identified some practices that we characterize as family ties burdens.  Here, we present a normative framework for analyzing whether such penalties or burdens can be justified.  First, we quickly explain why we adopt a defendant-centered perspective in this project. Then, we revisit some of the costs of family ties benefits that we adumbrated and explored last year to see if any retain applicability in this new context of family ties burdens. Finally, we highlight the voluntary care-giving feature we see in the structure of family ties burdens, a feature which we think can serve as a guide for scrutinizing burdens more generally. Informed by this obscured but intelligible principle, we offer some thoughts on how to restructure family ties burden allocations within the criminal justice system.

  1.           Why a Defendant-Centered Perspective?

We must bear in mind that evaluating a policy from the defendant’s perspective is important because it is after all the defendant whose liberty the state seeks to place in peril. The conduct rules at the core of this Article are aimed at defendants – and it seems necessary to analyze those conduct rules on their own terms.  After all, it is the defendants who are coerced; and the criminal justice system’s coercive nature is its most important feature demanding justification.

But we aren’t naïve.  There is more to say on the matter. In characterizing family ties burdens, we have focused exclusively upon burdens imposed upon de-fendants and potential defendants, even though it is often the case that someone within the family – or “the family” as a social institution – could potentially be described as benefitting from the “burden.” In other words, what appears to be a penalty on familial status in an individual case could be imposed as part of a strat-egy to confer benefits to the social institution of the family as a whole.  For in-stance, the recent criminalization of nonpayment of child support looks like a “family ties burden” in the sense we defined it earlier.  That’s because, as a general matter, failure to pay debt is not a reason for criminal punishment.  Indeed, other legal mechanisms exist to help debtors, most prominently, bankruptcy.  But now, failure to pay child support, which is a form of debt, is a basis in many jurisdictions for criminal punishment.  Thus, failures to meet some kinds of intra-familial financial obligations are now penalized much more harshly than the failure to meet other financial obligations. That definitely creates a burden on a defendant, at least as we defined it earlier. Indeed, in some cases, the burden imposed on the defendant is also a burden on those whom it is allegedly supposed to help. Thus, for example, a woman whose ex-spouse is jailed for failure to pay child support may object on the ground that this burden imposes a terrible tax on her family as well as on the defendant, in that it reduces the ability of her children’s father to play any kind of meaningful role in their lives.  Thus, many of the practices we have described in Part I powerfully affect family interests beyond those of just the defendant.

Contacting a Detroit Criminal Lawyer is one of the first steps you must take if you or a loved one has been arrested, whether it is for a misdemeanor or felony.

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Shaming a Child and The Wisdom(?) of Parental Punishment

Photo_servlet(Douglas A. Berman) As detailed in this local Florida story, headlined “Teen Forced To Carry ‘I Am Stupid’ Sign After Speeding Ticket,” a mother recently made headlines by imposing a shaming punishment on her reckless son.  Here are the basic details:

Adam Clark was pulled over going 107 mph in a 55-mph zone; neither the police nor his mother were pleased.  Adam’s mother, Heidi Wisniewski, not only took his car away, but also made him a sign to show outside of his school every morning and every afternoon.

He was forced to hold a sign reading, “I was stupid. I drove over 100 mph and got caught. Thank God!  I could have killed me and my friends.”  Adam said he got some strange looks and laughs from classmates at Orlando’s Merritt Island High School, but said he accepts his punishment.  Despite the humiliation, he said he isn’t mad at his mother….

Wisniewski said her son would be in front of the school before and after school for a month, and added that she didn’t think the punishment is over the line.  “I love my son very much,” she said.  “I think more parents need to be tougher on their children.”…

Adam said the punishment worked.  “I’ve learned my lesson,” Adam said.

If you have been accused of criminal intent and you are going into criminal litigation, your top and only priority will be to find an experienced, knowledgeable, and aggressive criminal lawyer to go to bat for you.

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Prescription for Pain

(Stuart Green) One of the themes that I have pursued in my scholarship is the frequently elusive line that distinguishes criminal conduct from mere civil wrongs. That theme was taken up in a context I had not considered before in a cover piece by Tina Rosenberg in Sunday’s New York Times Magazine, entitled “When is a Pain Doctor a Drug Pusher?” The main focus of Rosenberg’s piece is a Greenwood, S.C., physician named Ronald McIver, who, based on evidence that he had been prescribing many times the recommended dosage of various opioids, was sentenced to thirty years in prison for drug trafficking. Rosenberg believes not only that the law was wrongly applied to McIver’s case, but that the law itself should be changed.

Rosenberg’s description of the facts is so sympathetic to McIver that it’s hard to tell whether the facts really did support his conviction. Rosenberg argues that McIver’s sin was nothing more than being overly aggressive in his approach to pain management, and perhaps sloppy about his record keeping (though she does note that some of McIver’s patients were regularly selling excess amounts of prescribed drugs to third parties.) She suggests that the one patient of his who did die, allegedly as a result of over-prescription, had an underlying condition that was the real cause of his death.

Whether or not Rosenberg’s reading of the facts in the McIver case is accurate, what troubles me is her treatment of the larger legal issue that it raises. So far as I can tell, Rosenberg thinks that we shouldn’t ever criminalize what she calls “bad medical decisions.” Before criminal sanctions can be imposed, she says, the evidence ought to show a “link broken” between the patient’s medical condition and the drug prescribed, such as when a doctor exchanges a prescription for money or sex or writes a prescription for a made-up name or without ever seeing the patient. So long as there is some intact link between the medical condition and drug prescribed, she says, criminal prosecution is not warranted. Instead, she says, cases of mere recklessness should be referred to the state medical board or should result in a claim for civil malpractice.

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Drug Prosecutions: Racial Disparity, San Diego State and U.S. News Rankings

(Marc Miller) Human Rights Watch recently reported that the depressing old story that African Americans are disproportionately drug defendants remains true. (News story here.)  One reason may be political;  drug search warrants of wealthier, whiter neighborhoods have a higher success rate (see Lawrence Benner, Racial Disparity in Narcotics Search Warrants, 6 Journal of Gender, Race and Justice 193 (2002)) suggesting that the standards are higher to search there.  The police understandably avoid making mistakes with people having the power to retaliate: “If you search the King, the King must be holding.”

There are, I am willing to bet, active drug networks at Andover and Spence, at Williams and Harvard, but generally, they are let alone unless they go out of their way to attract police attention.  That’s why the recent DEA drug investigation and raid at San Diego State University is so interesting. 

Leaving affluent kids alone is, I think, essential to the political stability of the War on Drugs.  Why don’t headmasters and deans at elite schools beg for the services of undercover narcotics investigators, who could develop solid cases against young dealers for multiple felonies and then pack them off to state prison for double-digit terms (forfeiting their trust funds in the process, of course)?  Would that not delight parents and fellow students would then be protected from these criminals?  My bet is that parents and students would instead say that police have better things to do than arrest good young people for conduct that millions have engaged in, conduct which, at least as to these kids from fine families, warrants rehabilitation and treatment, not punishment.    

This approach was abandoned at SDSU, where 75 students were arrested and charged with serious crimes.  (NPR story here).  So we are given a perfect conflict: Strong cases based on months of investigation of sitting ducks with a complete lack of basic drug dealer professionalism, serious charges that could send these kids to state prison, and affluent defendants whose parents (and I can hear the popping of champagne corks even here in Tucson) are about to confer a substantial windfall (75 defendants!) on the   best criminal defense attorneys.

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