June 29, 2014
Two new examinations of white-collar prosecutions and punishment schemes
Lucian Dervan has recently posted two notable new articles on white-collar crime and punishment on SSRN. Here are links to both articles and their abstracts:
Abstract: In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.
Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases. Therefore, the article examines five stories of white collar criminal prosecution. The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.
First, the stories demonstrate that we must be careful not to value finality over accuracy. As an example, though plea bargaining offers both the prosecution and the defense a mechanism by which to reach sentencing finality, it must not be used to mask unfounded criminal cases or offer overpowering incentives to innocent defendants to falsely confess in return for a promise of leniency. Second, the stories remind us that the government must be careful not to confuse achieving a victorious sentencing finality with achieving a just one. Too often today, the government proceeds after indictment as though winning a sentence at any cost is worth any price. Third, the stories reveal that, in many ways, the quest for true finality in criminal cases is fleeting. While we have long been aware of the lingering collateral consequences present even after a sentence is concluded, we now must also recognize that even those who are acquitted face significant collateral consequences from indictment itself.
Abstract: Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders. While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes. In fact, they typically represent some of the most commonly charged offenses in the federal system.
Through examination of the Sarbanes-Oxley Act of 2002 and examples of these two types of over criminalization within that law, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this tells us about and means for the over criminalization debate and the criminal justice system as a whole.
June 29, 2014 at 10:12 PM | Permalink
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The dumbass lawyers will not say it, but this story is 1000 years old. It represents one of the most solid and enduring business plans. The Church, a cult, used the instrument of government, namely men at arms to plunder the assets of productive middle class people. They mad up an infinity of rules, and required rituals, all requiring payment to the Church. Violations of these were called blasphemy, and required death at the stake. However, plea bargains were available in exchange for donations of estates to the church. And you have the Sistine Chapel, a vanity expression of wealth unequaled since. Challengers to their obviously wrong dogmas were killed or incapacitated.
This cult was so powerful, they had their dumb scam immunized in a constitutional amendment. The scam is, pay us now, get your reward after your death. The dead cannot complain about not going to heaven. It is a perfect scam.
All their methods are duplicated by the feminist/homosexual lawyer, Harvard Law grad traitor of today, supernatural, idiotic doctrines, validation solely by the force of arms, and police thugs, self dealt immunity, nowhere to go for legal recourse, an infinity of rules to be violated, with every person, including babies, violating several a day. Keeping the population and the nation in the Dark Ages.
Inquisition 1.0 only ended, after 700 successful years, with the violent extermination of these internal traitors. French patriots, middle class people, had 10,000 high Church officials beheaded or expelled. 1.0 ended. They got the message.
The American people deserve their failing state, re-electing these cult criminals.
Posted by: Supremacy Claus | Jun 29, 2014 10:39:59 PM
"First, the stories demonstrate that we must be careful not to value finality over accuracy."
We need to be careful not to value accuracy over finality. One of the most devastating rebukes in this regard is the first chapter in Charles Dicken's "Bleak House". We live in an imperfect world and so the search for perfect accuracy is a endless boondoggle, which as Supremacy Claus suggests is nothing more than more rent seeking by lawyers.
Like all things in life it requires a balance. Putting the innocent in prison is part of the price we pay for letting the guilty go free.
Posted by: Daniel | Jun 29, 2014 11:02:22 PM
Daniel. Good point for every innocent person in jail, there are a thousand vicious, repeat violent offenders protected and set loose by the lawyer, each committing hundreds of serious crimes a year, devastating all people and property in their paths. Each of these loosed sociopaths is like a natural disasters causing $millions in damage a year. The lawyer will not let the neighbors kill him, and prosecutes any law abiding citizen who seeks to defend himself and the neighborhood from this natural disaster. The lawyer collaborator stand between us and a crime free society. This is true with one exception. Where the lawyer lives (such as my neighborhood, 5 miles from a horrible ghetto), there is virtually no crime, and the death penalty is at the scene, by the police.
Posted by: Supremacy Claus | Jun 29, 2014 11:55:01 PM