White Collar Crime WEEK 14
What strong incentive exists when a defense's arguments against charging fail?
A strong incentive exists to plead guilty because of the low likelihood of winning cases for which such arguments have failed.
What have state attorneys identified as several key factors in the decision to prosecute?
Amount of money involved. Number of victims Their belief in the guilt of the accused. Prosecutorial success rate.
What do judges generally believe they should have in WCC?
Believe they should have greater flexibility in tailoring sentences to fit specific offenders and circumstances.
How are a great majority of conventional criminal cases in most jurisdictions resolved?
By plea bargaining.
What are WCC defendants especially likely to be intimidated by?
By the prospect of a prison sentence and may resist pleading guilty if such a sentence is involved.
What cases take priority to local prosecutors?
Cases involving direct violence and illicit drugs take priority.
What cases are prosecution most likely in?
Cases involving individual defendants and organizational victims.
What cases are inherently problematic for prosecutors?
Cases of governmental crime or political WCC.
What does research suggest that jurors are more likely to be sympathetic towards?
People like them.
What does corporate and finance crime cases pose a problem with?
Poses a problem in obtaining appropriate witness or victim cooperation.
Traditionally, what have judges been reluctant to?
Reluctant to impose tough sentences on business-people. Judges may believe that the shame of criminal prosecution is punishment enough for many offenders.
What does a decision to prosecute a corporation require?
Requires a major commitment of finite resources.
What is one of the main differences between defendants in conventional crime cases and WCC defendants?
it is that the latter can afford private lawyers and accordingly get a much better defense.
Class action lawsuits
lawsuits in which a group of directly injured parties seek compensation and, in some cases, punitive damages from an organization.
Since White collar defendants often have relatively good reputations, what may defense lawyers stress?
Their "good character" and argue that a person with such good character would be highly unlikely to engage in illegal or unethical conduct.
What do corporate lawyers use to try to get hostile judges off particular cases?
Their Clout.
What can prosecutors rationalize?
Their failure to take the responsibility of various state or federal agencies.
What do controversy concerning trial juries center around?
Their representatives and competence.
Prosecution of antitrust cases
These have been highly selective and especially influenced by the political ideology of the incumbent administration.
Since the Watergate affair, What have federal prosecutors finding?
They are finding it increasing appealing to pursue WCC.
What do defense attorneys do in many WCC cases?
They hire private investigators to gather information helpful to them.
What happens to convicted offenders who are sentenced to prison?
They tend to disappear prior to the start of their prison term, but this happens less often than one might expect.
When WCC offenders are incarcerated they are almost always sent where?
To a minimum security prison or prison camps.
What do corporate and finance crime cases require?
require large expenditures of time and special investigative skills. It also involves greater difficulties in establishing criminal intent.
Citizens suits
civil lawsuits in which private citizens seek enforcement of a statute by petitioning the court, who may order the people or organizations violating the statute to halt their activities and, in some cases, assess fines.
What does the prosecutor have formidable discretionary power over?
Over which criminal cases will be prosecuted and which charges will be pursued.
What type of jury are WCC defendants more likely to face?
A jury of their peers.
What does not guarantee a favorable result?
A high-priced legal defense.
What are the 2 beliefs about the judicial sentencing of white collar offenders?
1. White collar offenders are treated more leniently at sentencing than are conventional offenders. 2. Sentencing is idiosyncratic and haphazard.
Mistretta v. United States
1989 case in which the U.S. Supreme Court upheld the constitutionality of the U.S. Sentencing Commission and the federal sentencing guidelines established in the Sentencing Reform Act of 1984.
What does the grand jury act as?
A check on politically motivated prosecution.
What were less than half of the WCC cases disposed of by?
A criminal prosecution. (The remainder were dropped by civil or administrative procedures).
What is the determination to prosecute Antitrust Cases based on?
After an initial investigation of a substantive complaint and the circulation of evidentiary memos, the determination to prosecute is based on the quality of the evidence, amount of interstate commerce, size of the parties involved and likely impact of such prosecution on the department's reputation.
What do defense lawyers of White Collar criminals have to avoid?
Alienating jurors with overly technical cases or an elitist image.
What do White Collar defense lawyers attempt to do if the case does go to trial?
Attempt to exploit their superior financial resources to challenge the prosecutions case at every possible step.
What are the most recent responses to white collar crimes?
Civil lawsuit.
What do lawyers who defend clients accused of WCC complain?
Complain that many existing prosecutorial rules and practices impose substantial burdens on defense attorneys.
What are the voters concerned with seeing in regards to conventional criminal offenders?
Concerned with seeing conventional criminal offenders convicted and behind bars.
The Rivers and Harbors Act of 1899
Considered the first congressional expression of intent to criminalize polluting activity. This act did not lead to any serious, measurable prosecutorial activity against environmental criminals for the first seven decades of the 20th century.
What did the sentencing guidelines originally constrain?
Constrained judicial discretion in sentencing and increased the average amount of time spent in prison without clearly reducing disparity among sentences imposed on comparable offenders.
When prosecutors pursue WCC cases, what cases are they generally of?
Consumer fraud, insurance fraud, false claims, environmental offenses, securities fraud and tax fraud, and illegal payments cases.
Defendants who plead guilty in WCC cases typically become what?
Cooperating witnesses.
The U.S. Sentencing Commission
Created to oversee the production, implementation and revision of the guidelines.
In conventional cases, what type of defendants do judges deal with?
Defendants who are different from themselves and have committed offenses removed from their own pattern of behavior.
What defendants usually have an advantage?
Defendants with private counsel.
Who still has a considerable advantage in tort cases?
Despite recent legislative and jurisprudential reforms that aided plaintiffs in tort cases, Wealthy corporate defendants still have a considerable advantage.
The Prosecution of Environmental Crime
Despite some modest increases in prosecutions, fines and prison sentences for individual corporate executives, there has been a systematic reluctance to imprison environmental offenders or to fine corporate environmental offenders more than a fraction of the statutory maximum for these offenses.
In many cases with organizational offenders, what do corporations do?
Evade payment of their fines.
State Attorney Generals
Even though state attorney generals have greater resources to pursue significant white collar crime cases than do local and county prosecutors, their resources have remained limited.
Overall, what does evidence suggest about juries?
Evidence does not suggest that juries are either significantly more or less likely than judges to acquit WCC defendants or to impose tougher penalties.
When do inherent conflicts of interest exist?
Exist when high-level government officials are investigated by a Department of Justice with close political ties to those officials.
What have federal prosecutors assumed the primary responsibility for?
For pursing major WCC cases.
What are the most common white collar crimes handled?
Fraudulent transactions.
What may defense lawyers head off an indictment in exchange for?
In exchange for the client's cooperation with prosecutors.
From a strategic point of view, the WCC defense may believe what?
May believe that the in court it can exploit ambiguities in the law.
What do sentencing guidelines provide?
Incentives for organizations to put into place truly effective compliance programs with the major objective of promoting good corporate citizenship.
What did the adoption of federal sentencing guidelines do?
Increased the fines and jail sentences for WCC offenders.
What were the sentencing guidelines formulated principally with?
Individual violators of the federal criminal code in mind.
What is easier to prosecute...individuals or organizations?
Individuals.
What was the intention of the special prosecutors office?
It was to address the obvious, inherent potential for a conflict of interest when the Justice Department is faced with prosecuting criminal allegations against powerful people in that branch.
What does some evidence suggest in criminal cases?
Jurors are more likely to hold corporations more blameworthy than individuals than individual executives for wrongdoing.
What did Reagans and Bushs first administration show?
Little commitment to prosecuting WCC.
To the extent that these agencies are pursuing a case, who are far more less likely to get involved?
Local prosecutors.
The Sentencing Reform Act of 1984
Marked the formal adoption of federal sentencing guidelines.
What do most fines reflect?
Most fines are modest and reflect the offenders perceived ability to pay.
What did federal prosecutors do during the Obama administration?
Moved much more aggressively to take on financial fraud cases.
Are individual WCC offenders typically sent to prison?
No they are not.
What does the average fine imposed on organizations totaled to?
Only 76% of the harm caused.
Who represents only a small proportion of criminal defendants?
Organizational offenders.
What are judges in WCC cases often confronted with?
Special challenges so the trial is likely to take longer, and the testimony and evidence will be more dry and tedious.
Civil suits
Suits continue to be a principal mechanism for attempting to control and punish WCC.
Corporate antitrust cases
Tend to be large and complicated, stretching across various jurisdictions and lasting for an extended period of time.
What does much evidence from government reports support with WC criminals?
That these criminals are considerably less likely to go to prison than are conventional offenders and that the prison sentences they receive are of shorter duration.
How are U.S. attorneys appointed?
The 94 attorneys are appointed by the president and are in charge of major federal prosecutions.
Who is the principle officer of the court?
The Judge.
What are among the arsenal of potent prosecutorial weapons?
The application of the RICO to WCC and emerging federal sentencing guidelines.
What is the seriousness of a fine as a criminal sanction meaningful only in relation to?
The harm caused and the resources of the organization fined.
What was the creation of the special prosecutors office in response to?
To the Watergate affair and its investigation.
What have local prosecutors traditionally directed most of their time and attention to?
To the broad range of conventional crime cases.
Civil lawsuits are most directly relevant to which white collar crime cases?
Tort cases and are sought in response to some injury, damage or loss.
True or false: An indigent defendant who is represented by a highly experienced public defender could get a better defense than a white collar crime defendant with modest means who hires a lawyer with relatively little experience in such cases.
True
True or False: An indigent defendant who is represented by a highly experienced public defender could get a better defense than a white collar crime defendant with modest means who hires a lawyer with relatively little experience in such cases.
True.
True or False: Judges are also more likely to experience some sense of empathy with defendants in white collar crime cases than in cases involving conventional criminals.
True.
True or False: Special Prosecutors (independent counsels) have sometimes been appointed in politically sensitive cases to act free from direct supervision by the administration in power.
True.
True or false: White collar crime defendants are more likely to plead not guilty and go to trial than conventional defendants.
True.
What percentage of all WCC cases advance to trial?
Very small percent.
What is one form of WCC that exemplify the need for federal prosecution?
Violations of antitrust laws.
What have state prosecutors begun to pursue corporations for?
Violations of state laws more often.
What cases is the grand jury more important in?
WCC cases than in conventional cases because a grand jury indictment is constitutionally required in the federal system.
Who are more likely to be fined or put on probation?
WCC offenders than are conventional offenders.
What was the Clinton administration more ideologically attuned to?
WCC.
What is not regarded as a serious crime to local prosecutors?
White Collar Crime
The likelihood of a prison sentence depends significantly on the type of WCC involved?
Yes
Do prosecutors have autonomy in choosing cases to pursue?
Yes.
True or False: Some types of WC offenses elicit harsher sentences than others?
Yes.