Sunday, June 12, 2005

Overreaching By Prosecutors

The NYTimes has a story here, that speaks to prosecutions in white collar cases, specifically those by Spitzer's office (although Arthur Andersen is lumped into the picture).  It is a critical piece talking about overreaching by prosecutors.

But is this something new? Is the use of the criminal system, in cases that perhaps should proceed through a civil system, or not at all, just happening now? Or is it just happening more in the open now in cases with a higher profile?

In our casebook, Israel, Podgor, Borman, & Henning, White Collar Crime: Law & Practice 2d (West 2003), we discuss the case of United v. Brown, 79 F.3d 1550 (11th Cir. 1996), where the Eleventh Circuit Court of Appeals reversed a conviction stating, "the fraud statutes do not cover all behavior which strays from the ideal; Congress has not yet criminalized all sharp conduct, manipulative acts, or unethical transactions."

Where is the appropriate line between proceeding with a criminal action and using regulatory action?   And should that line be different if it is a coporation versus it being an individual?  The casebook provides examples from history of corporations that in some cases reached civil agreements with the government, and in others cases ended with guilty pleas to criminal charges. (p. 66-71).


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