Friday, April 8, 2005

Will White Collar Sentences Have the Greatest Disparity Post-Booker?

Doug Berman on the Sentencing Law & Policy blog has an interesting post (here) raising the question whether the defendants in white collar crime cases will be the greatest beneficiaries of the newly-granted discretion federal judges have after Booker.  He highlights two below-guidelines sentences given by U.S. District Judge Peter Dorsey, including the year-and-a-day sentence to former Connecticut Governor John Rowland.  Rather than write a comment to his post, I decided to put something up here and encourage readers to check Doug's post and add comments there. [For anyone with an interest in sentencing, the SL&P is a must-read)

I think white collar defendants have the most to gain from a discretionary sentencing system (bound by the "reasonableness" standard of review imposed by Booker) because they are more likely to make arguments that appeal to the judges.  Their offenses are non-violent, many of the defendants can show long-time charitable and community involvement, and the collateral effects of the convictions can be significant (e.g. loss of professional license), particularly the effect of a conviction and incarceration on third-parties (e.g. layoffs of employees if the company owner is sent to prison).  Unlike defendants in many drug or gun-possession cases, white collar defendants are almost universally first-time offenders, and therefore can make a plausible argument that their conduct is aberrational -- how often can a felon-in-possession or defendant in a large-scale drug case do that with a straight face? 

Defendants in white collar cases are most like the judges who sentence them, and some are well-known in the community in which the sentencing judge lives.  There is a natural sympathy for a defendant who is just like you, has a nice family, etc. Of course, these were among the very arguments in favor of a mandatory sentencing system, to eliminate the bias in favor of white collar defendants. 

Mandatory minimums are prevalent in the drug and gun cases, but not for economic crimes, so there is no "floor" under the sentences for white collar crimes except for the Guidelines.  While the number of white collar cases in the federal system is small, they also tend to be cases with much higher profiles, so any disparity in the sentencing of these defendants will be noticed by the press (and federal prosecutors). 

I do not think that all the grounds outlined above are legitimate reasons to give sentences below the Guidelines' "suggested" range, but to the extent courts incorporate them in sentences, then over time it will trigger a growing disparity in white collar cases, both between these crimes and other types of offenses and within the category of economic crimes itself.  Different districts and judges will gain reputations as being harsher or more lenient.  Will that trigger a reaction from Congress, possibly by adopting mandatory minimums for certain types of white collar crimes (e.g. public corruption offenses)?  Of course, the constitutionality of mandatory minimums remains open to question, but that's a different issue. I suspect Congress will repsond by restoring some aspect of a mandatory sentencing system, but at this point the outlines of that response are unknown. (ph)

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