June 29, 2008
Plea Bargaining's Survival: Financial Crimes Plea Bargaining, a Continued Triumph in a Post-Enron World
LUCIAN E. DERVAN
Oklahoma Law Review, Vol. 60, No. 3, Fall 2007
This article examines the war on financial crimes that began after the collapse of Enron in 2001. Although many believed that the reforms implemented following this scandal led to greater prosecutorial focus on financial crimes and longer prison sentences, an analysis of data from 1995 through 2006 reveals that little has actually changed. The statistics demonstrate that the government's focus on financial crimes has not increased and prison sentences for fraud have remained stagnant. How could this be the case? It is this author's hypothesis that although prosecutors could have chosen to use new statutes and amendments to the United States Sentencing Guidelines passed in the wake of Enron to increase prosecutions and sentences, they did not. Instead, prosecutors are using their new tools to encourage defendants to accept plea agreements that include sentences similar to those offered before 2001, while simultaneously threatening to use these same powers to secure astounding sentences if defendants force a trial. The result is that the promises of post-Enron reforms aimed at financial criminals were hollow and served only to reinforce plea bargaining's triumph.
|From Boardroom to Courtroom to Newsroom: The Media and the Corporate Governance Scandals|
KATHLEEN F. BRICKEY
Washington University School of Law
Journal of Corporation Law, Vol. 33, p. 625, 2008
Washington U. School of Law Working Paper No. 08-05-01
(esp) (posting from Denver, Colorado)
(esp) (posting from Denver, Colorado)
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An empirical study is required on the issue of how many cases were proffered for investigation, how many were prosecuted, how many were declined and even how many cases were denied investigation personnel.
Does the Public Integrity Section and such units as the Pres Bush Corp Fraud Task Force comply with the protocol to assign a case number after one hour's effort?
Are such "special entities" required to provide the Office of Review and Oversight ("ORO") a case number report as is the standard at the DOJ, FBI or US Trustee's office?
If integrity of our system of justice and judicial process is sacrosanct, what bodies and persons are the overseers of such sine qua non issues?
All things reflect from senior management on down. The reason our Pres is so important documents this well. The current public perception of the system of justice needs a rating review and a Press report to the public at large.
Our systems are only as good as our effort's to keep such pure!
Posted by: Laser Haas | Jun 29, 2008 11:49:02 AM
great post! thanks very much for sharing
Posted by: Anti - crime | Jun 30, 2008 10:51:05 AM
It is fascinating that Professor Brickey has written an article about the impact of media coverage on white collar crime trials -- with significant skepticism of defendants' conduct -- without examining the role of the prosecution in the media circus. The criminal justice system in the United States is an adversarial system, and prosecutors use many strategies to create a public opinion of guilt before trial--calling televised press conferences to announce indictments, using inflammatory terms with the media to create the impression of guilt before trial, presenting one-sided accusations as statements of fact to an unsophsticated public, and regularly leaking information that is helpful to the prosecution. Goodness knows they're not out publicizing the exculpatory evidence they found. We have seen so many high profile examples of professionally and politically motivated prosecutions in recent years that it seems unfair to ignore the prosecutors' role in playing to the media.
Admittedly, the prosecution doesn't need to go to extreme lengths to influence the media, since the media can sell more papers by vilifying corporate executives (yes, even the WSJ) than by critically analyzing the government's accusations against white collar criminals. Certainly most corporate defendants would prefer that the media write and say as little as possible about their situation before the trial. But that is simply not the reality.
There is a tremendous amount at stake for someone accused of a crime and as we've seen (Arthur Anderson, maybe even Jeff Skilling, heaven forbid), just because someone is accused of a crime does not mean that one has been committed --- even where there has been a corporate failure or a financial restatement. Defendants cannot be condemned for defending themselves in the same forum in which the first trial occurs - the media.
Posted by: No Longer Naive | Jun 30, 2008 6:30:10 PM