Tuesday, July 21, 2015

New Article - Sentencing the Wolf of Wall Street

I recently posted a new article to SSRN entitled "Sentencing the Wolf of Wall Street: From Leniency to Uncertainty."  The article, which is based on my presentation during a recent symposium, examines the Jordan Belfort ("Wolf of Wall Street") prosecution as a case study for considering how white collar sentencing has changed from the 1980s to today.  I also delivered a lecture regarding white collar sentencing based on this article at the recent 2015 U.S. Sixth Circuit Conference in Detroit, Michigan.

The abstract for the piece is below.
This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. In concluding this initial examination, the Article discusses three observed trends. First, today, as might be expected, it appears there are much longer sentences for major white-collar offenders as compared to the 1980s and 1990s. Second, today, there also appears to be greater uncertainty and inconsistency regarding the sentences received by major white-collar offenders when compared with sentences from the 1980s and 1990s. Third, there appear to have been much smaller sentencing increases for less significant and more common white-collar offenders over this same period of time. In Part III, the Article examines some of the possible reasons for these observed trends, including amendments to the Federal Sentencing Guidelines, increased statutory maximums, and judicial discretion. In concluding, the Article offers some observations regarding what the perceived uncertainty and inconsistency in sentencing major white-collar offenders today might indicate about white-collar sentencing more broadly. In considering this issue, the Article also briefly examines recent amendments adopted by the U.S. Sentencing Commission and proposed reforms to white-collar sentencing offered by the American Bar Association.
The article will appear shortly in the Wayne Law Review. To download a free copy of the entire article, click here.

New Article - Defining White Collar Crime

I recently posted a new article to SSRN entitled "'White Collar Crime': Still Hazy After All These Years."  The article is authored with Professor Ellen S. Podgor of Stetson University College of Law. Below is the abstract.
With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under hybrid white collar statutes of perjury, false statements, obstruction of justice, and RICO. The empirical analysis suggests the need for an individualized multivariate approach to categorizing white collar crime to guard against broad federal statutes providing either under-inclusive or over-inclusive examination of this form of criminality.
The article will appear later this year in the Georgia Law Review.  To download a free copy of the article, click here.

Friday, July 10, 2015

Article - Content and Comprehensibility of Juvenile and Adult Tender-of Plea Forms

For those looking for some summer reading regarding plea bargaining, I recommend Allison Redlich and Catherine Bonventre's article entitled "Content and Comprehensibility of Juvenile and Adult tender-of_Plea Forms: Implications for Knowing, Intelligent, and Voluntary Guilty Pleas."

The Abstract reads:
The overwhelming majority of criminal convictions in the United States are obtained through guilty pleas. To be constitutionally valid, guilty pleas must be knowing, voluntary, and intelligent. The information the defendant relies on to make a knowing, voluntary, and intelligent plea decision may be conveyed to the defendant through several modes, including but not limited to communication with defense counsel. Here, we address a mode that to our knowledge has previously not been systematically examined—tender-of-plea (ToP) forms. ToP forms are written instruments that inquire into whether the defendant understands and appreciates the plea decision and is capable of entering it. Using content analysis and comprehensibility measures, we examined a national sample of 208 tender-of-plea forms for both juvenile and adult defendants to determine what information they contained and their level of comprehensibility. The ToP forms were coded for several items concerning knowledge and voluntariness including rights waived, direct and collateral consequences, and capacity. Our findings show that the forms (a) are highly variable in their content, (b) exceed the reading comprehension of most defendants, and (c) are available more often to adult than to juvenile defendants. The implications of these findings are the forms should not be used to stand in place of “full and vigorous” judicial plea colloquies or meaningful defender-defendant discussions about plea decision-making.
To access the article, click here.

ACLU and Koch Industries Partner on Overcriminalization

Politico Magazine has an interesting piece by Anthony Romero, Executive Director of the ACLU, and Mark Holden, General Counsel of Koch Industries, entitled "A New Beginning for Criminal Justice Reform."  In the piece, the two argue in favor of the bipartisan Safe, Accountable, Fair and Effective Justice Act (SAFE Justice Act) introduced in Congress on June 25, 2015 by Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.).

The piece begins:

The criminal justice system’s problems are evident all around us.

Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety. From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes. Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable. Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer. In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large.

That is why we, two unlikely allies — the American Civil Liberties Union and Koch Industries — support Reps. Sensenbrenner and Scott’s new bipartisan reform proposal. Both of our organizations are deeply concerned with helping the least fortunate and ensuring that justice is served equally and to all, regardless of their socioeconomic status or their station in life. The SAFE Justice Act contains numerous reforms that will begin turning this shared dream into a reality.
You can read the entire article and its discussion of the specific proposals in the SAFE Justice Act here.

I had the honor of testifying before Representat
ive Sensenbrenner and Scott's bipartisan "Over-Criminalization Task Force" regarding the topic of "Regulatory Crime: Solutions" on November 14, 2013.  You can read my 2013 testimony here.  You can also read my article regarding the symbiotic relationship between overcriminalization and plea bargaining here.

The Dynamics of the Plea Bargain - New York Law Journal

The New York Law Journal has a piece entitled "The Dynamics of the Plea Bargain" that is well worth a read.  The article is an edited version of a speech delivered by Paul Shechtman, partner at Zuckerman Spaeder, on June 2, 2015 at the State University in Albany to the Research Coordination Network on Understanding Guilty Pleas.  The Research Coordination Network is a group funded by the National Science Foundation with the goal of fostering new research on the process that generates guilty pleas.  I am honored to be a member of this group.

Paul Shechtman's talk begins:
I offer these comments as a lawyer and teacher who has practiced and thought about plea bargaining for more than 30 years. There was a day when I could run a regression analysis but that time is long gone.

I will convey my thoughts about plea bargaining by telling you three stories.

The first story dates to 1970, well before I began practicing law. That year, the U.S. Supreme Court decided Baldwin v. New York. Prior to Baldwin, under Section 40 of the New York Criminal Code, defendants charged with class A misdemeanors in New York City (that is to say, crimes for which the maximum term of imprisonment was one year) were tried either to one or three judges. Class A misdemeanants had no jury trial right. In Baldwin, the Supreme Court declared that Section 40 was unconstitutional: if the authorized sentence of imprisonment was more than six months, a defendant had a constitutional right to a jury trial.

As scholars, you may be asking yourself what happened in New York City after Baldwin? In 1971 the student authors of the Columbia Journal of Law and Social Problems asked themselves that question. To answer it, they compared data from the six months before Baldwin and the six months after Baldwin. Here is what they learned:

In the six months before Baldwin, 27.6 percent of non-dismissed cases were tried to either one judge or three judges, a defendant had his choice. Two to four cases could be tried a day. By comparison, in the six months after Baldwin, the trial rate fell to 16.3 percent, and the vast majority of those trials were still non-jury. Most defendants who went to trial waived their new right to a jury trial. Indeed in the six months after Baldwin only 63 cases (2.5 percent of the non-dismissed cases) were tried to a jury. The average jury trial took between 2 1/2 and 3 days to complete.

What occurred after Baldwin was more plea bargaining. Sentences for those who pleaded guilty were reduced to make pleading guilty more attractive. In the six months prior to Baldwin, 25 percent of sentenced offenders received less than 60 days; in the six months after Baldwin, the number increased to 41 percent. Sentences of more than 60 days were reduced in proportion.

That is my first story, and I will return later to its implications.
The article then continues with additional stories and observations regarding their significance to the plea bargaining issue. The entire article is available here.

To learn more about the Research Coordination Network, including links to various articles and resources regarding plea bargaining, visit the Network's website here.