Thursday, September 3, 2015

Registration Open for ABA CJS Global White Collar Crime Institute

Registration is now open for the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute, which will take place November 19-20, 2015 at the Ritz-Carlton Shanghai Pudong in Shanghai, China.  The event is done in collaboration with the KoGuan Law School of the Shanghai Jiao Tong University.  I am honored to serve as the Institute Chair and hope to see many of my blog readers at the event.

This conference will be an incredible opportunity to interact with prosecutors, judges, defense counsel, accountants, in-house counsel, and academics from the U.S., China, and other parts of the world as they convene to discuss the complexities of international white collar crime.  

More from the registration website:
The goal of the conference is to bring the energy and excitement of our previous international white collar crime conferences to Asia and create unique opportunities for our participants to network and explore the legal complexities of white collar crime in the growing Chinese legal market. Conference topics will include:
  • General Counsels’ Roundtable
  • Enforcers' Roundtable
  • How to Conduct an International Internal Investigation
  • Recent Developments in Global Antitrust Cartel Enforcement and Anticipated Implications for China and Asia
  • Comparative Legal Systems & Special Enforcement Issues in China, the US & Beyond
  • Year in Review: Lessons Learned from Recent White Collar Crimes Prosecutions in China & the US
  • Trends Regarding Anti-Corruption Enforcement in China & the US
  • Cyber Crime & Virtual Currencies
  • Social Responsibility of Corporations
LUNCHEON KEYNOTE SPEAKER – November 19
Sung-Hee Suh, U.S. Deputy Assistant Attorney General  
Suh was appointed in Sept. 2014 as the U.S. Department of Justice's Deputy Assistant Attorney General overseeing the Criminal Division's Fraud, Appellate and Capital Case Sections.  She re-joined the Department after 15 years in private practice at Schulte Roth & Zabel LLP in New York, where she was a partner in the Litigation group and focused on representing institutions and individuals in financial fraud, securities regulatory, Foreign Corrupt Practices Act, anti-money laundering and sanctions matters.  
The complete program is also now available on the ABA CJS registration website. 

Sentencing the Wolf of Wall Street: From Leniency to Uncertainty

I have just released a new article discussing the sentencing of Jordan Belfort, better known as the "Wolf of Wall Street."  I use this case as a mechanism for considering how white collar sentencing has evolved from the 1980s until today.  In particular, the article examines the growth in uncertainty and inconsistency in sentences received by major white collar offenders over this period of time and considers some of the reasons for this trend.  The article also examines the impact of recent amendments adopted by the U.S. Sentencing Commission on white collar sentences.

Lucian E. Dervan, Sentencing the Wolf of Wall Street: From Leniency to Uncertainty, 61 Wayne Law Review -- (2015).

Abstract:

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.

Tuesday, August 25, 2015

Please Join Us for the 2015 ABA CJS Work-in-Progress Roundtables

Once again, the ABA Criminal Justice Section Academics Committee will host work-in-progress roundtables at the annual Criminal Justice Section Fall Institute in Washington, DC.  The roundtables will be held on Thursday, October 22, 2015 from 12:30-3:00pm at the Loews Madison Hotel, and the ABA will provide sandwiches and drinks for lunch.  The rest of the CJS Fall Institute programs will take place later in the day on Thursday, October 22 and on Friday, October 23 at the same hotel.  The entire ABA CJS Fall Institute Program is available here.

We hope you will consider workshopping your criminal justice works-in-progress at these roundtables.  Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. If you’re interested in participating, please email an abstract of your paper of no more than 500 words to Lucian Dervan at ldervan@law.siu.edu by Sept. 15, 2015.  Space is limited, and presenters will be chosen by members of the organizing committee.

This is an excellent opportunity for academics at any stage of their careers, and for those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, but there is no registration fee for participating in the roundtables.  If you decide to participate in the remainder of the ABA CJS Fall Institute, you will need to register for that event separately – see here for registration information.

We are also excited to note that this year’s workshop will begin with a brief opening address by Professor Stephen A. Saltzburg of the George Washington University Law School.  Professor Saltzburg will discuss how to create and execute a productive and impactful research agenda.  Professor Saltzburg is one of the nation’s leading scholars and has authored over twenty books and over 100 articles.  Professor Saltzburg’s talk is not to be missed.

The Criminal Justice Section has secured a special room rate of $269 single/double per night at the Lowes Madison Hotel.  This rate can be reserved by calling 855-255-6397 and referring to the “ABA Criminal Justice Section Fall Institute.”  You can also book using this code online at https://www.loewshotels.com/madison/CJS-Fall-Institute-Meeting-2015?corpcode=CJSO21.  Reservations must be made by Thursday, October 1, 2015 at 5:00pm EST to secure this rate.

Please spread the word to those who might be interested, including those not yet in academia.  We have included below some information regarding last year’s workshop.  We hope to see everyone in D.C. at the end of October.

All the best,

Lucian E. Dervan (SIU Law) and Meghan J. Ryan (SMU Law)
Co-Chairs, ABA CJS Academics Committee

Information Regarding Last Year’s Roundtable

On October 23, 2014, the ABA Criminal Justice Section Academics Committee hosted academic roundtables at the ABA Criminal Justice Section Seventh Annual Fall Institute. At these roundtables, scholars from across the country discussed papers on topics ranging from big data’s effect on jury selection to whether second-look sentencing is consistent with the asserted purposes of the Model Penal Code. Participants in the academic roundtables included Joanmarie Davoli (Florida Coastal, now Fed. Soc.), Cara Drinan (Catholic), Andrew Ferguson (Univ. of D.C.), Lea Johnston (Florida), Kevin Lapp (Loyola LA), Ion Meyn (Wisconsin), Steve Morrison (North Dakota), Anthony O’Rourke (Buffalo), and Meghan Ryan (SMU).

Here is a sampling of the great work they presented:

The Miller Revolution, by Cara Drinan (forthcoming in the Iowa L. Rev.)
In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has limited the extent to which juveniles may be exposed to the harshest criminal sentences.  In this Article, I argue that the Miller trilogy has revolutionized juvenile justice.  While we have begun to see only the most inchoate signs of this revolution in practice, this Article endeavors to describe what this revolution may look like both in the immediate term and in years to come. Part I demonstrates how the United States went from being the leader in progressive juvenile justice to being an international outlier in the severity of its juvenile sentencing. Part II examines the Miller decision, as well as its immediate predecessor cases, and explains why Miller demands a capacious reading. Part III explores the post-Miller revolution in juvenile justice that is afoot. Specifically, Part III makes the case for two immediate corollaries that flow from Miller, each of which is groundbreaking in its own right: 1) the creation of procedural safeguards for juveniles facing life without parole (“LWOP”) comparable to those recommended for adults facing the death penalty; and 2) the elimination of mandatory minimums for juveniles altogether. Finally, Part III identifies ways in which juvenile justice advocates can leverage the moral leadership of the Miller Court to seek future reform in three key areas: juvenile transfer laws; presumptive sentencing guidelines as they apply to children; and juvenile conditions of confinement.

Strictissimi Juris, by Steve Morrison (67 Ala. L. Rev. __ (forthcoming 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2535115)
Guilt by association is universally rejected, but its criticisms are always based on the substantive due process right to individual, not imputed, liability.  The rule of strictissimi juris promises to be the procedural counterpart to the substantive right.  Its promise, however, has gone unfulfilled because it is little understood or developed. This article provides a descriptive, prescriptive, and contextual dissertation on strictissimi juris.  Descriptively, it provides the jurisprudential foundation and definition of strictissimi juris.  Prescriptively, it sets forth the purposes for which lawyers and courts have invoked strictissimi juris, thus providing a guide for how future lawyers might invoke strictissimi juris, and courts apply it.  Contextually, it analogizes strictissimi juris to substantive canons that play important roles in the separation of powers.

Tuesday, August 18, 2015

New York Times Magazine on Bail and Plea Bargaining

The New York Times Magazine has an excellent article entitled "The Bail Trap."  The article discusses the relationship between bail, innocence, and false pleas of guilt.  Below is a portion of the article:
With national attention suddenly focused on the criminal-justice system, bail has been cited as an easy target for reformers. But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments. New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution. If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed. By encouraging poor defendants to plead guilty, bail keeps the system afloat.
The entire article is available here.

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.