• Due Process,  Presumption of Innocence,  Sentencing

    White-Collar Felon Registries, Hester Prynne and The Drive-By Truckers

    Although one must admire the historicist sensibilities of a state legislature that just reinstated the firing squad  as a methodology for execution, the Utah legislature’s passage of a bill to create a white-collar crime registry modeled on sex offender registries is unwise where it is not silly. As a New York Times article notes: With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than…

  • Cooperation Agreements,  Presumption of Innocence,  Sentencing

    Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression

    If they give awards for “Best White-Collar Article of The Year,” I wish to nominate one.  And it’s not even, strictly speaking, an article only about white-collar crime. Jed Rakoff is a federal district judge in the Southern District of New York (in other words, in Manhattan).  We have mentioned Judge Rakoff before, here and here.  He also famously criticized DOJ’s failure, as he perceived it, to prosecute individual executives in the financial crisis. Here, he has a thoughtful article on Why Innocent People Plead Guilty. Portions bear quoting at some length: The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the…

  • Drugs,  Sentencing

    Conservatives and Mandatory Minimum Federal Sentences

    From Professor Berman’s “Sentencing Law and Policy Blog,” why conservatives should support the effort to reform mandatory minimums in non-violent federal sentences: the Heritage Foundation and mandatory minimum sentences: A conservative friend alerted me to this notable entry from the blog of The Heritage Foundation authored by Evan Bernick and headlined “Time to Reconsider Mandatory Minimum Sentences.”   Here are excerpts:  The Smarter Sentencing Act is narrowly tailored to address one of the most pressing problems with mandatory minimums — arbitrary, severe punishments for nonviolent offenses— while leaving for another day the question of whether mandatory minimums should apply to violent crimes…. Mandatory minimums were intended to address widely acknowledged…

  • Compliance,  Sentencing

    It’s Only A Fine

    One would expect fines In civil and criminal enforcement actions to bear some relationship to both the offensive conduct and the statute that authroizes the fine, but that’s rarely the case.  Rather, they’re the product of strategy, tactics, raw power and solid horse-trading, as outlined by Professor Peter J. Henning: Fines, Without Explaining How They Were Calculated In particular, Professor Henning notes: For an individual, it is difficult to resist the broad authority granted to the S.E.C. to impose significant monetary penalties. For companies, the civil penalty is more a matter of how much they are willing to pay because limitations on the amount of a penalty seem to be…

  • Sentencing

    Good People, Bad Acts and Intent

    From Professor Peter J. Henning, more on the “why” of white-collar offenses:  When Good People Do Bad Things: That is the conundrum of many white-collar crime cases: successful business people act in ways that put careers and personal fortunes at risk for seemingly modest gains, and sometimes the misconduct benefits their company but themselves only indirectly. (See our earlier post: Why’d He Do It?) This theme runs through many white-collar situations: employees, officers and vendors rarely see themselves as “criminals,” and often act when they are at the end of a rope (their own or someone else’s).  Before you protest that taking “motive” or “context” is being soft on business…

  • Crime Fiction,  Sentencing

    Why’d He Do It?

    Here’s a note from Professor Ellen Podgor about an article on Sentencing the Why of White Collar Crime by Todd Haugh (Illinois Institute of Technology – Chicago-Kent College of Law)  in the Fordham Law Review.  From the abstract: “So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in…

  • Sentencing

    Alabama’s New Sentencing Guidelines

    A good summary from Sentencing Law and Policy Blog about Alabama’s new sentencing guidelines: I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory. For lots of reasons, and perhaps especially because Alabama’s sentencing…

  • Securities Fraud,  Sentencing

    From our friends at the White Collar Crime Prof Blog

    Quick collection of white-collar news from the   White Collar Crime Prof Blog: Mark Hamblett & Sara Randazzo, The AmLaw Daily, Ex-Kirkland Partner Sentenced to One Year For Tax  Fraud George J. Terwilliger III, National Law Journal, Walking a Tightrope in White-Collar Investigations AP, Las Vegas Sun, Ex-Akamai exec barred for 5 years in SEC case; Bob Van Voris, Bloomberg, Ex-Akamai Executive Settles SEC Suit Over Rajaratnam Tips Nate Raymond, Reuters, Baltimore Sun, U.S. prosecutor cautions against white-collar sentencing revamp Jennifer Koons, Main Justice, Former Enron Prosecutor Tapped to Head Criminal Division Zachery Fagenson, Reuters, Ex-Bolivian anti-corruption official denied bail in Miami extortion case

  • Parallel Proceedings,  Sentencing

    White-collar news stories via White Collar Crime Prof Blog

    Good roundup of white-collar news stories from Ellen Podgor and White Collar Crime Prof Blog: Mark Hamblett & Sara Randazzo, The AmLaw Daily, Ex-Kirkland Partner Sentenced to One Year For Tax  Fraud George J. Terwilliger III, National Law Journal, Walking a Tightrope in White-Collar Investigations AP, Las Vegas Sun, Ex-Akamai exec barred for 5 years in SEC case; Bob Van Voris, Bloomberg, Ex-Akamai Executive Settles SEC Suit Over Rajaratnam Tips Nate Raymond, Reuters, Baltimore Sun, U.S. prosecutor cautions against white-collar sentencing revamp Jennifer Koons, Main Justice, Former Enron Prosecutor Tapped to Head Criminal Division Zachery Fagenson, Reuters, Ex-Bolivian anti-corruption official denied bail in Miami extortion case  

  • Compliance,  Sentencing

    Mine Blast Plea: Dust, Documents and Deaths

    As the  article (via @Law360) points out, Ex-Massey Exec Gets 42 Months In Mine Blast Case this Massey mining manager pleaded to “pre-notifying” about MSHA inspections (and conspiracy pertaining thereto).  It’s interesting that, in his plea colloquy, he was was apparently careful and narrow, almost ascribing a business-culture source for the conduct: “I’m sorry for what I’ve done — pre-notifying about mine inspections,” Hughart said at his sentencing, according to the Associated Press. “I grew up that way. I accepted it as common practice. I know better now, and I apologize.” That kind of approach needs to be handled gingerly, though.  The larger case landscape is important for sentencing considerations…