Archive for the ‘Federal Crime’ Category
Why Does White Collar Crime Happen?
Like most people who practice criminal law, I go back and forth between thinking that the explanations for some kinds of behavior are basically unknowable, and a healthy dose of armchair psychology to figure out why people do things that they know are not in their self-interest. When I’m writing a sentencing memo, I tend to try to answer for the court why my client is before the judge. I find that studies about the causes of crime almost never fail to get my attention.
Which is why I was very excited to see this article, Researchers Expose a Pattern for White Collar Crime. The article reports on a study that found a pattern for what allows white collar crime to happen at a company or other institution. Basically, like the stages of grief, the researchers believe that every big white collar case works through the following 12 steps:
- Perpetrator is hired into a position of power
- Perpetrator develops a sense of superiority and engages in illegal activity
- Co-workers recognize perpetrator’s misconduct and become passive participants
- Passive participants recognize opportunity
- Passive participants reluctantly follow the perpetrator
- Perpetrator distrusts followers and feels the need for control
- Perpetrator senses his power over followers and is emboldened
- Perpetrator bullies followers and relishes his hold on them
- Perpetrator intensifies white-collar crimes as followers feel increasingly trapped
- Followers struggle with the conflict between their values and actions
- Perpetrator loses control as a whistle-blower steps forward
- Perpetrator denies or admits to wrongdoing and shows lack of remorse
I’m not sure what I think of this. On one hand, it looks like it may be a relatively useful way of explaining how people at institutions respond to the one bad actor at the top. I could see this being used as a meaningful argument for mitigation of a lower-level employee.
On the other hand, this study kind of looks like it might be junk (as a guy whose only read an article about it, not the actual study). Who counts as a perpetrator? Take Enron for example, is Ken Lay the perpetrator? Skilling? Fastow? It seems like the model would be slightly different (or squishy enough to be vacuous) depending on which of these players you choose as the “perpetrator.”
Moreover, look at step two. Isn’t that kind of quick? Perpetrator develops a sense of superiority and engages in illegal activity? That’s it? That’s the explanation for why there’s crime? No look into what else was going on in the lives of the “perpetrators?” No look at whether the “perpetrator” even thought his conduct was criminal to begin with, particularly in this age of regulation of business through the Bureau of Prisons.
White collar crime happens because of a sense of superiority. Huh. I guess that’s good to know.
Is there any incentive for prosecutors to do the right thing?
Over at Sentencing Law and Policy, Doug Berman reports on a recent article wondering why prosecutors are rarely punished when they do illegal things.
According to Radley Balko at Reason, one prosecutor in Florida has put four men in prison who were later exonerated. That prosecutor is now on the bench hearing criminal cases.
Balko asks,
[a]s DNA exonerations continue to accumulate across the country, we’re left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases, like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect’s innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?
Balko isn’t just complaining in a vacuum, he notes that the Innocence Project identified prosecutorial misconduct as a significant cause of a false conviction in at least a quarter of its cases. None of those prosecutors have been subject to meaningful discipline.
This is yet another sad part of how the incentives for prosecutors line up in a way that is not consistent with the public interest.
Prosecutors are rewarded by career advancement and, in some cases, cash awards, for getting convictions. Prosecutors are not rewarded for exercising good judgment to decline to prosecute when they ought to, or to seek a lighter sentence when appropriate. Maybe prosecutors really do act in the public’s interest most of the time, but I don’t think we’d create an incentive structure like that in any other area of public life.
The rejoinder to this is that prosecutors, as public servants, will pull up and exercise their discretion well. Certainly that happens, and when it does it should be celebrated. But the incentives don’t line up to suggest that it will happen often. Why should such a prosecutor care that they did the right thing?
Our system relies on prosecutorial discretion, yet there is no meaningful incentive to develop or exercise good judgment as a prosecutor. And Balko argues that there is no reason to fear any meaningful punishment for bad behavior. With no carrot for behaving well, and no stick to punish behaving poorly, what kind of discretion should we expect from our nation’s prosecutors?
A Wisconsin Judicial Protest of Federal Prosecutions?
In July, I blogged about a federal district court judge in Milwaukee who was mandamused after meeting with a Federal Public Defender and a United States Attorney and questioned the U.S. Attorney’s office’s judgment in bringing a case federally.
Now, as they say, the plot thickens.
Apparently the mandamused Judge has announced that he is no longer taking criminal cases. It isn’t clear if he’ll resume when a new U.S. Attorney is appointed, but that appears to be the rumor. NPR has excellent coverage, in a story in tonight’s All Things Considered.
My understanding is that the Judge has issued an order in every pending case he had, which said that he was concerned there may be an appearance of impropriety by taking cases. Apparently he doesn’t explain why, but one has to assume it’s because the U.S. Attorney’s Office has successfully had him removed from a case, and a neutral observer (like, say, me) might think that he would be upset about that.
[Note that it isn't just that the Judge isn't taking new criminal cases, he's also getting rid of the criminal cases he already had.]
NPR has a more interesting explanation, that this Judge was the U.S. Attorney back in the day; back when “don’t make a federal case out of it” really meant something; back when AUSA’s were more than just a backstop for state courts. According to NPR, this judge really wants to return to that gentler time, and he doesn’t think federal prison is the most effective place to put people who are found in a bad neighborhood with a gun.
I hope they don’t take my Prius away for saying it, but I disagree with NPR on that score. State crime has been federalized for a while now. The Judge has an awfully slow reaction time if that’s why he’s bowing out of criminal work.
The Ninth Circuit Changes the Rules for Law Enforcement Searches for Electronic Evidence
The Ninth Circuit has decided a major case on the way law enforcement searches electronic evidence using search warrants or grand jury subpoenas. The case is United States v. Comprehensive Drug Testing, Inc. and it’s a chewy steak dinner for folks who like reading about how our Constitutional rights are going to work in the age of electronic evidence.
It’s also a kick in the crotch to the kind of agents and prosecutors who over-reach when it comes to people’s Fourth Amendment rights. (Though, as I read the case, I think the agent was overreaching and committed the government lawyers to take some unnecessarily aggressive positions.)
Hi. I use a computer, and I like the Fourth Amendment.
There’s so much in this opinion that I’m just going to raise a few of the big parts I find particularly noteworthy. You should really read the whole thing yourself. Clearly, Comprehensive Drug Testing is going to play a huge role in how the Fourth Amendment and electronic data intersect in the years to come. It’s also kind of a fun read.
Basically there are three big take away points – (1) the government cannot use the plain view doctrine to justify searching electronic evidence they don’t have probable cause to search; (2) the government has an affirmative obligation to disclose any actual risks of destruction of electronic evidence in a search warrant application; and (3) once the government takes electronic evidence pursuant to a search warrant, it is limited to searching for evidence that it already has probable cause to search.
A fuller discussion of each of these points (and more!) is after the jump. Read More…
I’m teaching at Solo Practice University!
I’m going to be teaching a course at Solo Practice University!
The course I’ll be teaching is on Federal Criminal Practice. It’s designed for students who already know how to represent someone in state court on criminal charges but wants to expand his or her practice into federal court. I’ll talk about the parts of criminal practice that are unique to federal court – Federal Sentencing, the Federal Rules of Criminal Procedure, the Bail Reform Act, and some of the constitutional challenges to a prosecution that one can make in federal court more frequently than state court. It should be fun.
Solo Practice University, for those who don’t know, is a resource for lawyers and law students who have started, or what to start, a solo law practice. There are courses in substantive areas of law (such as my humble offering) as well as the logistics and details of starting a practice, getting clients, and handling the other stresses, challenges, and joys that come from helping folks in our legal system.
I’m looking forward to teaching the course to help lawyers who are coming to federal court represent their clients better. I remember one day, as I was walking into the U.S. Marshall’s cell block in federal court, I saw a friend of mine who I knew did a fair bit of state criminal work. He asked if he could bend my ear to talk about a case he had. He’s a good lawyer, and he really cares about his clients, but he was so lost in the federal sentencing scheme that applied to his client that he really was not going to do the job he needed to. To his credit, he was asking for help, but I fear what happens when lawyers in that situation don’t reach out to someone with federal experience. My hope is that by teaching this class I can better equip state court criminal defense lawyers to go into federal court and represent their clients well.
Do We Need an Art Fraud Task Force?
I’ve blogged before about how the federal government likes to create task forces to create specific problems. There are health care fraud task forces, mortgage fraud task forces, Hurricane Katrina fraud task forces, and workplace fraud task forces. Creating a fraud task force allows prosecutors to pool their resources relating to a specific industry, consolidate their knowledge of that industry, ask for more money from Congress, and issue press releases.
Your computer does not now contain an original Miro painting
Out of San Fransisco, however, comes a story that perhaps warrants a new task force on art fraud. Apparently, a federal grand jury has indicted an art dealer for selling fake Miro paintings. An undercover postal inspector allegedly purchased a fake Miro from the art dealer at the man’s gallery in San Fransisco.
Worse, the Miro fraud was not just in San Fransisco, but it involved galleries around the country, and in Italy and Spain. One defendant is outside of the U.S., and our government is trying to have him brought over to stand trial here.
Even worse than that, the art fraud ring is not limited to Miro, but also included prints that were not paintings done by Warhol and Picasso.
I have to think that’s a pretty good detail for a postal inspector to get assigned to.
Coming Soon – Mortgage Fraud Prosecutions?
It appears that there is a new national task force to combat mortgage fraud. DOJ is teaming up with HUD, Treasury, and the FTC, as well as a number of state Attorneys General to investigate and prosecute mortgage fraud.
Perhaps I’m slow, but I thought there was already a big task force combating mortgage fraud as a result of the last housing bubble.
The difference, if you read the article carefully, must be that this task force is focusing on “bogus foreclosure rescue” schemes. It’s much more of a housing market collapse mortgage fraud task force, as opposed to the prior mortgage fraud task force which focused on schemes from when real estate prices were high.
That’s a relief. I’d hate to think that prosecutors are doubling up their efforts just so they could issue press releases.
When Can an AUSA Lie?
There’s a fascinating case unfolding in Georgia. According to Law.com (reprinting an article from the Fulton County Daily Reporter), United States District Judge Clay Land learned that a prosecutor from the United States Attorney’s Office in the Middle District of Georgia lied to a defense attorney. The defense attorney asked if the prosecutor was recording their conversations. The prosecutor says he wasn’t. As it happened, that was a lie.
Judge Land said, “I’m shocked. . . . There’s got to be some policy about when a U.S. Attorney can lie.” I’m also a little surprised that there’s apparently no policy on when a U.S. Attorney can lie too.
Though that isn’t the problem I have with the case described in this article.
Is Eric Holder Providing Change We Can Believe In?
I’m very excited about our new President. I like his pick for Attorney General a lot. And I really like the signals he’s sending. But I don’t think the great words we’re hearing are resulting in much action to improve the lot of people being charged in federal court.
Lanny Breuer, who runs the Criminal Division of the Department of Justice, came out forcefully in support of eliminating
Just words?
the disparity between the sentences for crack and powder cocaine. Indeed, as Lanny Breuer put it, “[t]he administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.”
Similarly, at the Vera Institute of Justice last month, Attorney General Eric Holder gave a dramatic address laying out his philosophy of criminal justice enforcement. Here are some of my favorite parts (with emphasis added),
[J]ust as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.
To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.
I agree with all of this. There is, though, a sleight of hand here – the Attorney General focuses on prison construction and spending. Of course, someone has to fill all those prisons. Many of those people work for him. But, he’s right about the larger point that simply filling prisons is not a viable, humane, or just law enforcement strategy.
And check out what the Attorney General is saying about drug crimes,
One specific area where I think we can do a much better job by looking beyond incarceration is in the way we deal with non-violent drug offenses. We know that people convicted of drug possession or the sales of small amounts of drugs comprise a significant portion of the prison population. Indeed, in my thirty years in law enforcement, I have seen far too many young people lose their claim to a future by committing non-violent drug crimes.
I couldn’t agree more with these statements. Holder has the right attitude on where law enforcement should go, and what criminal justice policy should be.
But does any of it matter? Is it changing the behavior of line attorneys? Are defendants in federal criminal court being treated any different because Eric Holder is the Attorney General? I think the answer is no.
An unusual chambers conference
This seems to be the week when I blog about players in the criminal justice system not comporting with the highest standards of their professions. On Tuesday I blogged about a criminal defense lawyer gone bad. Yesterday, I blogged about Judge Pollak slapping down a prosecutor who was so out of line the Judge had to order a new trial.
This post deals with a judge being criticized by a Court of Appeals. The Seventh Circuit granted a mandamus petition filed by an United States Attorney’s Office against a federal District Court judge in Milwaukee, Wisconsin.
A mandamus petition is granted only when a judge’s conduct is so bad that his conduct was unlawful. It is a highly unusual petition for a Court of Appeals to grant. And it’s highly unusual for a litigant to file one. Normally, with a motion to recuse, lots of lawyers think the best policy is something like “if you’re going to shoot the king, kill the king.” The last thing you want is to file a motion to recuse, make the judge very angry, and have the judge remain on your case. Obviously, you hope the judge won’t hold it against you, but, well, we’re all human.
It’s all the more unusual to see a mandamus action from an institutional litigant like the United States Attorney’s Office. One can see the relationship between the U.S. Attorney’s Office and the mandamused judge being a little strained.
This case is not just unusual because of the mandamus petition though. It stems from a highly unusual meeting in the Judge’s chambers.