Sunday, November 27, 2005

White Collar Sentencing

A recent article on white collar sentencing in the Chicago Tribune here does an excellent job in pointing out that white collar sentences have risen as a result of the sentencing guidelines.

The article is titled, "Disparity Grows in Penalties for Execs."  Immediately under this title, however, is this subtitle, "Changes in sentencing rules spark variations in prison terms for white-collar criminals."  The article also states, "[t]he upshot: longer sentences than in the past, to be sure, but also a rise in disparities from judge to judge or jurisdiction to jurisdiction."

I agree with the statements of Professor Doug Berman, Attorney James Felman, and Professor John Coffee in this article.  And the article notes some important points regarding white collar sentencing - including the fact that white collar offenders are receiving exorbitant sentences these days. But - - -

1.  How is white collar crime being defined in this article?  Is it being defined the way the government statistics are defining it - a definition that omits all the corruption cases (despite the local USAs including corruption in their definition of white collar crime).  See post here - "Is DOJ 'Cooking the Books' in its Reporting of White Collar Crime?" This is an important question to ask whenever anyone is making any claim about white collar crime - How did they define it!

2. Is there really more of a sentencing disparity now?    The sentencing disparity is greater because of the "deals" the government provides to people - something that has existed since the enactment of the guidelines.  In the pre-Booker phase this was through 5K1.1 motions, and to a large extent that still exists.  Sentences people receive are not always based on their criminal culpability, but rather on whether they cooperate with the government.

3.  Sentencing disparity is also in large part a function of what the government charges the defendant with - that is, the crimes charged and the amount of loss claimed.  The mere adding of a money laundering count to a standard mail fraud charge significantly raises a sentence.  Yes, these days the government might include money laundering in a white collar case. So the sentencing disparity may be nothing more than a judge neutralizes the government charging process.

4. Is it so easy to say that there is now more disparity in sentencing?  Just because a person in one courtroom receives one sentence does not mean that a person in another courtroom receives a different sentence for the same crime.  The problem here is that one is often comparing apples and oranges.  No two cases are exactly the same.  In determining culpability it is important to recognize this, and that is exactly why judges need some discretion to modify the guidelines to suit the specific facts.  The fact remains that even after Booker they all start with the advice of the guidelines.

5. Just because there may be more departures in white collar cases (something I am not fully convinced of yet - and I define white collar crime to include corruption cases), does not mean that judicial sentencing is missing the mark.  Perhaps it is a signal to the legislature that someone needs to re-evaluate the draconian sentences being given in some of these cases.   

So if there is anyone out there who intended to take this Tribune article and say - - you see, we need more mandatory minimums, or we need a guidelines system that is mandatory because the advisory nature of the guidelines produces disparity in white collar cases -- these conclusions are not so easy and miss the real questions noted above. Everyone agrees that white collar sentences have gone up under the guidelines.  Not everyone, however, agrees that this is warranted.


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