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.