Sunday, June 29, 2014

White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence

I recently posted my article entitled "White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," to SSRN for free download. 

Below is the article's full abstract.  A free copy of the article is available for download by clicking here

Abstract

White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence, 101 Kentucky Law Journal 723 (2013).

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.

Pleading Innocents: Laboratory Evidence of Plea Bargaining's Innocence Problem

I recently posted my article entitled "Pleading Innocents: Laboratory Evidence of Plea Bargaining's Innocence Problem" to SSRN for free download. 

Below is the article's full abstract.  A free copy of the article is available for download by clicking here.

Abstract

Vanessa A. Edkins and Lucian E. Dervan, Pleading Innocents:  Laboratory Evidence of Plea Bargaining’s Innocence Problem, 21 Current Research in Social Psychology 14 (2013) (peer reviewed)

We investigated plea bargaining by making students actually guilty or innocent of a cheating offense and varying the sentence that they would face if found ‘guilty’ by a review board. As hypothesized, guilty students were more likely than innocent students to accept a plea deal (i.e., admit guilt and lose credit; akin to accepting a sentence of probation) (Chi-square=8.63, p<.01) but we did not find an effect of sentence severity. Innocent students, though not as likely to plead as guilty students, showed an overall preference (56% across conditions) for accepting a plea deal. Implications and future directions are discussed.

"The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem," 103 Journal of Criminal Law & Criminology 1 (2013): A longer law review article discussing the findings and examining the implications of the results on the constitutionality of plea bargaining is available by clicking here

International White Collar Crime and Deferred Prosecution Agreements

I recently posted my new article entitled "International White Collar Crime and Deferred Prosecution Agreements" on SSRN for free download.  The article examines deferred prosecution agreements in the U.S. and U.K., including close analysis of new rules regarding the use of Deferred Prosecution Agreements in the U.K.  

Deferred prosecution agreements (“DPAs”) are negotiated settlements of criminal investigations entered into between the government and the investigated entity.  Typically, such agreements require an entity to admit wrongdoing, pay a substantial fine, and engage in remedial measures.  If an entity succeeds in satisfying the requirements of a DPA, the government agrees to dismiss any criminal charges that have been filed against the entity related to the matter.  While distinct from traditional plea bargaining because the defendant corporation does not enter a plea of guilty before a court, there is much overlap between these two types of negotiated settlement, including the incentive structure to give up one's right to be proven guilty before a jury. 

Below is the article's full abstract.  A free copy of the article is available for download by clicking here.

Abstract


International White Collar Crime and Deferred Prosecution Agreements, ABA CJS White Collar Crime Committee Newsletter (Winter 2014). 

In October 2013, the American Bar Association Criminal Justice Section (“ABA CJS”) convened its 2nd annual International White Collar Crime conference in London, United Kingdom. In an auditorium filled almost to capacity, audience members representing practitioners, corporations, enforcement agencies, and academia listened intently to discussions regarding a myriad of topics, including enforcement trends, international internal investigation strategies, and global whistleblower incentives. The large audience and strong interest in the subject of the conference reiterated the growing importance of matters related to international white collar crime in an ever-increasingly globalized business environment.

One of the topics that drew much discussion in London was the impending adoption of deferred prosecution agreements in the United Kingdom. Deferred prosecution agreements (“DPAs”) are negotiated settlements of criminal investigations entered into between the government and the investigated entity. Typically, such agreements require an entity to admit wrongdoing, pay a substantial fine, and engage in remedial measures. If an entity succeeds in satisfying the requirements of a DPA, the government agrees to dismiss any criminal charges that have been filed against the entity related to the matter. 

This article examines deferred prosecution agreements in the United States and the UK. Further, this article considers the draft Code of Practice for DPAs issued by the SFO in 2013 and the insights it offers into various aspects of the impending roll-out of DPAs in the UK.

The Quest for Finality: Five Stories of White Collar Criminal Prosecution

I recently posted my new article entitled "The Quest for Finality: Five Stories of White Collar Criminal Prosecution" on SSRN for free download.  The article examines various negative outgrowths of our quest for finality in the criminal justice system, including our tendency to value finality over accuracy.  In valuing finality over accuracy, plea bargaining stands center stage.  Though this article focuses on the larger issue of "finality," it includes a lengthy discussion of plea bargaining and its role in our criminal justices system and might be of interest to readers of the blog.

Below is the article's full abstract.  A free copy of the article is available for download by clicking here.

Abstract


Lucian E. Dervan, The Quest for Finality: Five Stories of White Collar Criminal Prosecution, 4 Wake Forest Journal of Law & Policy 91 (2014) (symposium article).

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.