Tuesday, September 29, 2015

New York Times Article re Plea Bargaining and Over-Incarceration

The New York Times has an interesting opinion piece today from David Brooks regarding "The Prison Problem."  The article focuses on over-incarceration and examines what might be driving this phenomenon outside of the usual suspects, such as the "war on drugs" and mandatory minimum sentences.  The piece argues that while the "war on drugs" and mandatory minimums certainly played their roles, there is also much to be said for the impact of changes in prosecutorial behavior over time.  In discussing the role of prosecutors, Brooks mentions the role of plea bargaining.
District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.
Brook's piece is well worth a read.  I look forward to a future opinion piece from Brooks looking more closely at the role of plea bargaining in the U.S. criminal justice system.

Brook's piece also references a recent documentary on Angola prison, entitled "Angola for Life."  It's an interesting documentary that explores an infamous prison that has gone through many transformations over the years.


Wednesday, September 23, 2015

Congress and Overcriminalization

I was honored to serve as the moderator of a recent discussion on Capital Hill regarding overcriminalization.  The discussion occurred on September 16, 2015 and was entitled "Striking the Right Balance: Criminal v. Civil Law Sanctions."  The program description is below:
How should our federal government strike the right balance between the use of criminal law sanctions instead of civil law sanctions? Are prosecutors expanding the reach of criminal statutes to address conduct that was clearly not contemplated by Congress when enacted? 
The event began with an opening address by Norman Reimer, Executive Director of the NACDL.  That was followed by a panel discussion, which included myself as moderator, Adeel Bashir (Appellate Division, Office of the Federal Defender, M.D.Fla.), John Lauro (Lauro Law Firm), and Marjorie Peerce (Ballard Spahr).  It was a wonderful event, and I encourage you to watch the below video of the discussion.  It included several fascinating stories of overcriminalization and the impact of this phenomenon on people, families, and communities.  The panel also addressed the symbiotic relationship between plea bargaining and overcriminalization (see article here regarding this topic).  Finally, among other issues discussed, the panel offered thoughts regarding potential solutions to overcriminalization with a particular focus on the role of Congress in drafting criminal laws.  


Interestingly, several days after the presentation, Senator Orrin Hatch (Utah) took to the floor of the U.S. Senate and presented his approach to reforming the U.S. criminal justice system.  Specifically, he focused on the need for meaning criminal intent requirements to ensure that "honest, hard-working American are not unjustly imprisoned."  

Senator Hatch also discussed overcriminalization and touched on many of the issues presented during the above panel discussion.
For too long, Congress has criminalized too much conduct and enacted overbroad statutes that sweep far beyond the evils they’re designed to avoid.  Surely, of all the categories of laws we pass here in Congress, we should take most care with criminal laws.  Criminal laws empower the state to deprive citizens of liberty and precious financial resources.  They carry serious collateral consequences, including loss of the right to vote, the right to own a firearm, and the ability to hold certain jobs.  And they permit the state to brand citizens with that most repugnant of all titles—criminal.  There is simply no excuse for sloppily drafted, slapdash criminal laws.  Too much is at stake.
Senator Hatch's full speech is available here.



Monday, September 14, 2015

Last Week Tonight Discusses Plea Bargaining

Below is a link to an excellent piece that appeared last night on Last Week Tonight with John Oliver.  The show has been focusing a lot on criminal justice issues lately.  This particular piece on public defenders includes discussion of plea bargaining and innocence, including the story of Erma Faye Stewart.


Hopefully, the show will soon have a piece devoted exclusively to the plea bargaining issue.

DAG Yates Issues Memo re Corporate Wrongdoing and Individual Criminal Liability

Deputy Attorney General Sally Yates has issued a memorandum regarding "Individual Accountability for Corporate Wrongdoing."  The memorandum describes important new priorities and policies regarding the prosecution of individual employees, not just corporations, in cases involving corporate crime.

From the memorandum:
Fighting corporate fraud and other misconduct is a top priority of the Department of Justice. Our nation's economy depends on effective enforcement of the civil and criminal laws that protect our financial system and, by extension, all our citizens. These are principles that the Department lives and breathes- as evidenced by the many attorneys, agents, and support staff who have worked tirelessly on corporate investigations, particularly in the aftermath of the financial crisis.

One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public's confidence in our justice system.
The memorandum goes on to make substantive changes to the Principles of Prosecution of Business Organizations (USAM 9-28.000 et seq.), available here.  The changes fall into 6 categories:

  1. To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct. 
  2. Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation.
  3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another. 
  4. Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals. 
  5. Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized. 
  6. Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay. 

Read the entire memorandum here.  The New York Times also has an article about the memorandum here.

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.