Thursday, March 25, 2010
The Vanderbilt Law Review En Banc has published an online Roundtable on Skilling v. United States. The Roundtable includes:
Nancy King, Introduction: Skilling v. United States
William H. Farmer, Presumed Prejudiced, but Fair?
Abbe David Lowell, Christopher D. Man & Paul M. Thompson, "Not Every Wrong is a Crime": The Legal and Practical Problems with the Federal "Honest-Services" Statute
Ellen S. Podgor, Intangible Rights-A Deja Vu
Monday, March 22, 2010
It's an interesting question presented in a cert petition filed in the Supreme Court. It's especially problematic when Congress fails to address the extraterritorial reach of a statute. Some courts look to international principles and use an "effects" test. But in this day and age, what doesn't affect the US? I have written articles on the extraterritorial prosecution of white collar crimes (here), computer crimes (here), and business crimes ("Defensive Territoriality": A New Paradigm for the Prosecution of Extraterritorial Business Crimes, 31 Georgia Journal International & Comparative Law 1 (2003)),
See British American Tobacco (Investments) Limited v. U.S. - Download BATCo Cert Petition and Appendix
Sunday, March 21, 2010
The sentences that white collar offenders receive are getting higher. Charles Ponzi received five years for the scheme that serves as the name for later Ponzi schemes. Bernie Madoff, convicted of one of these later schemes received 150 years. The higher sentence has triggered a more secure prison facility and Bernie Madoff was placed in a medium security prison. Dionne Searcey and Amir Efrati of the Wall Street Journal have an article titled "Madoff Beaten in Prison - Ponzi Schemer Was Assaulted by Another Inmate in December; Officials Deny Incident." Perhaps some victims of Madoff are elated to hear about an assault on Madoff, and are perhaps saying - he deserved it. And certainly we don't know whether there is truth to this reported incident. But irrespective of this, it does present an interesting issue. Should the sentence length govern the prison location to the extent that a non-violent offender is placed in a medium security prison?
Attorney Alan Ellis, an expert in this area notes:
"The BOP has a security designation factor called :PUBLIC SAFETY FACTORS (PSFs) . One is SENTENCE LENGTH. If an inmate has more than 10 years to serve, he is ineligible for a camp (MINIMUM); more than 20 years -to serve - ineligible for a LOW; more than 30 to serve -ineligible for MEDIUM. When the inmate reaches this time left to be served point, he can be transferred the next lowest facility. This PSF can be waived on over ridden "trumped" by a Management Variable called LESSER SECURITY. This is what allowed Madoff to be designated to FCI Butner on his 150 sentence rather than a HIGH - U.S. Penitentiary The same might be applied for a youthful first offender who gets a long sentence , e.g. a 19 year old bank robber who gets a 20+ year sentence."
As we move to more individualized sentencing in a post-Booker world, perhaps we also need to move to more individualized prison placements. After all do we really want to spend dollars on placing a white collar offender in a prison facility that requires more security than needed to keep the individual there.
(esp)(blogging from New York)