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November 14, 2015

"Is Deterrence Relevant in Sentencing White-Collar Defendants?"

The question in the title of this post is the title of this notable new article authored by Peter Henning and now available via SSRN. Here is the abstract:

This article is part of the Wayne Law Review symposium “Sentencing White-Collar Defendants: How Much Is Enough?” held in October, 2014.  The article looks at the primary justification for imposing punishment on a defendant convicted of a crime, which is deterrence of both the individual who committed the offense (special deterrence) and others similarly situated who will be dissuaded from pursuing similar misconduct (general deterrence). White-collar crimes are different from traditional street crimes, both in the type of conduct involved and the nature of the perpetrators.

One would expect that well-educated individuals, the type of person who commits a white-collar crime, would be easily deterred from violations because of the penalties suffered by others and knowledge of the consequences that is communicated through sentences imposed on others in the same industry or profession.  This article considers whether that message is heard because most white-collar offenses occur in seemingly unique circumstances, at least from the defendant’s point of view, and the person rarely expects to be caught, or may even believe that the conduct is not a crime.

The real value of deterrence is in keeping judges from succumbing to the impulse to view white-collar defendants as offenders who, having many good qualities, should not suffer any significant punishment.  Deterrence does not so much stop future crimes but acts as a means to inform judges about the need to impose punishments that do not let white-collar defendants use their social status and other resources to avoid the consequences of violations.

November 14, 2015 at 01:08 PM | Permalink


What if the defendant is 24, a veteran, mentally ill, and an addict?

Posted by: Supremacy Claus | Nov 14, 2015 1:23:28 PM

White collar criminals should be forced to wear pink collars for five years after their release from court, jail, or prison.

Posted by: Liberty1st | Nov 14, 2015 6:00:36 PM

I don't why this hard for the really stupid lawyer. To punish a defendant to scare a future defendant he has never met, over which he has no control, who has not yet committed a similar crime, nor even formed a plan to commit a similar plan, violates the Fifth Amendment procedural due process right to a fair hearing.

Any utterance containing general deterrence messages should result in a motion for a mistrial. One justification should be that the judge is a moron, and unfit to conduct any additional tribunal business. I would like to see statute adding judge stupidity as a valid reason for a mistrial in Criminal Procedure.

Posted by: Supremacy Claus | Nov 14, 2015 9:05:19 PM

General deterrence is another example of lawyer fictitious doctrine. The lawyer profession is just too stupid to see that.

Posted by: Supremacy Claus | Nov 14, 2015 9:07:11 PM

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