Friday, March 15, 2019

White Collar Prosecutions - Down?

Trac Reports titles the recent report, White Collar Prosecutions Hit All-Time Low in January 2019. They note that "[t]his is an historic low since monthly tracking began in October 1998." They note that "this number is down 20.3 percent over the previous month, and continues a five-month downward slide." Additionally, they say that "[c]ompared to five years ago, January filings were down 35.7 percent." President Trump's term they say has a number "lower than in previous administrations."

I don't doubt that the white collar prosecutions are down.  I also don't doubt that comparing the prosecutions from the current administration to the last administration using the same metrics support it being down.

But there is a separate issue here that raises concerns - how does DOJ measure white collar crime.   Trac includes thirty (30) categories of crimes, including ones related to fraud, antitrust, intellectual property violations, identity theft, and arson for profit.  The list of different types of fraud is impressive, including tax fraud, federal procurement fraud, insurance fraud, securities fraud, computer fraud, health care fraud, and many other classes of fraudulent conduct. 

But what I don't see are the "short-cut" offenses that are often used in white collar prosecutions. Unreported here are obstruction of justice, false statements, and perjury.  And yet we all know that these are common offenses used in white collar cases. And is RICO included in the statistics?  Cases under the Racketeer Influenced Corrupt Organization Act can have many different predicate offenses, some of which are street crimes like homicide, and others are mail and wire fraud.     

So there is no doubt that white collar prosecutions are down.  But we should also be asking -- isn't it about time that DOJ started looking at a better methodology for reporting white collar prosecutions.  See Lucian Dervan & Ellen Podgor, White Collar Crime: Still Hazy After All These Years.

(esp)(w/ disclosure that she has a B.S. degree from Syracuse U.- home of the Trac Reports).

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