“Deferred Prosecution Agreements”: Criminals Should Get Same Leniency As Corporations, Judge Says
For years, when corporations paid big fines to escape prosecution for their misdeeds, critics fumed. Why, they asked, shouldn’t big companies be treated like common criminals?
A federal judge turned that question on its head this week as he lamented being asked to approve yet another corporate settlement. Perhaps, he said, common criminals ought to be treated more like big companies.
Judge Emmet G. Sullivan, of the United States District Court for the District of Columbia, took aim at a favorite tool of the Obama administration for addressing corporate wrongdoing: a form of probation known as a deferred prosecution agreement. If companies behave for the length of the agreement, the matter is closed without any criminal record.
The judge said individual defendants should enjoy the same opportunities. While it is not uncommon for judges to criticize outcomes that they see as unjust, it is highly unusual for them to so explicitly advocate — and at such great length — a change in approach.
Judge Sullivan’s 84-page opinion — in what could have been a short, straightforward decision — is the latest influential voice to join a growing chorus of both liberals and conservatives who see the American criminal justice system as fundamentally unfair.
The ruling comes amid a rapidly changing environment: The White House is approving clemency applications at historically high rates; support is coalescing on Capitol Hill to ease sentencing laws; and law enforcement leaders around the country have declared that too many Americans are in prison for too long. Though the federal prison population has declined for the first time in decades, America remains the world’s largest jailer by far; its prison population nearly equals China’s and Russia’s combined.
Justice Department officials agree in principle with Judge Sullivan’s critique and have encouraged Congress to ease tough sentencing laws that were passed at the height of the crack epidemic. Emily Pierce, a department spokeswoman, noted that under an initiative begun in 2013, prosecutors were already ordered to prioritize more serious crimes, while looking for alternatives to prison for low-level offenders. Fewer low-level criminals being charged means fewer people eligible for deferred prosecution. The department has also strongly supported drug courts, which essentially offer the same second chance that companies are given.
At the same time, the Justice Department recently promised to get tough on corporate executives after years of criticism in the aftermath of the financial crisis that bankers, in particular, escaped punishment because their companies agreed to pay big fines. It was that promise, followed days later by a deferred-prosecution agreement with General Motors, that ignited Judge Sullivan’s fury.
Judge Sullivan was appointed to the federal bench by President Bill Clinton. He previously served as a municipal judge and a local appellate judge in Washington, having been appointed by Presidents Ronald Reagan and George Bush.
He called G.M.’s $900 million settlement “a shocking example of potentially culpable individuals not being criminally charged.” G.M. admitted that it misled the public about auto defects, but neither the company nor its executives were prosecuted, “despite the fact that the reprehensible conduct of its employees resulted in the deaths of many people.”
“The court is disappointed that deferred-prosecution agreements or other similar tools are not being used to provide the same opportunity to individual defendants to demonstrate their rehabilitation without triggering the devastating collateral consequences of a criminal conviction,” Judge Sullivan wrote.
Justice Department figures show deferred-prosecution agreements are rare for both individuals and companies. But the number of cases against organizations and companies is so tiny — 150 or so each year, compared with 160,000 or more individual prosecutions — that these deals occur at a much higher rate in corporate cases, which also tend to be higher profile.
Deferred-prosecution deals are attractive because they spare companies the consequence of criminal convictions, such as stock collapse and a loss of contracts. For people, the effects can be even more severe. The American Bar Association has identified tens of thousands of consequences of criminal conviction, which demonstrates how a single arrest can cost people their jobs and homes.
President Obama has indicated that he will make a criminal justice overhaul one of the most important issues of his remaining time in office. He became the first sitting president to visit a federal prison. On Thursday, he defended the Black Lives Matter movement, which has been criticized by police unions in particular as being anti-police. Mr. Obama plans to speak about changing the criminal justice system next week at the annual meeting of the International Association of Chiefs of Police in Chicago.
Much of the public debate has focused on reducing the prison population by cutting sentences for those serving long sentences for nonviolent crimes. Lost in the debate, Judge Sullivan said, has been the importance of keeping people out of jail in the first place. “This oversight is lamentable, to say the least!” he wrote.
He said criminal justice reform should offer people “the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions.”
While Judge Sullivan cannot make policy from the bench, the opinion shows the momentum behind efforts to improve the system, said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers.
“It has finally seeped into the public consciousness that there is something wrong,” he said. “All of a sudden, a nation wakes up and realizes we’ve created this unbelievable cadre of second-class citizens.”
By: Matt Apuzzo, The New York Times, October 23, 2015
“What I Learned From Watching The Benghazi Hearing”: No One Can Doubt That Hillary Clinton Has Got What It Takes To Do The Job
Yes, I watched the entire 11 hours – although I must admit that my attention lagged every now and then. The Republicans on the committee threw everything they had at Hillary Clinton. Here are my two big take-aways from all that.
The line of questioning that came from Rep. Jim Jordan wasn’t new…it’s been the big accusation against President Obama, Susan Rice and Hillary Clinton from the get-go. The claim is that all of them tried to fool the American people into believing that the anti-Muslim video that was sparking demonstrations all over the Middle East (both peaceful and violent) was the cause of what happened in Benghazi, when it was really a “terrorist” attack. I guess they forgot about the shellacking Romney took during the 2012 presidential debate when Obama allowed him to dig a disastrous hole with, “Please proceed, Governor.”
But overall, this argument tells us a lot about Republicans. Clinton got into trouble during a previous Congressional investigation about Benghazi when she basically asked why all that mattered. From a reality-based perspective, she had a point.
It seems that for Republicans, the death of a U.S. Ambassador and 3 other Americans wouldn’t matter as much if they were the result of protests rather than a terrorist attack. That kind of thinking is exactly why they get so perturbed that President Obama won’t call ISIS “radical Islamists.” It’s all about the words you use rather than the actions those words describe.
For as long as I can remember, Republicans have been trying to scare us with the words they use to describe our adversaries. During the Cold War and McCarthy hearings, it was all about “communists.” Reagan called the Soviet Union the “evil empire” and George W. Bush talked about the “axis of evil.” Instead of going after those who were responsible for 9/11, the Bush/Cheney administration launched a “global war on terrorism.”
Given all that, Republicans know that Benghazi isn’t an adequate vehicle for fear mongering unless we call it a “terror attack.” If, instead, it was the result of an angry mob reacting to an anti-Muslim video, that dilutes the message. But in the end, as Clinton said, what difference does it really make? Would our response be any different if there was a slight change in what we learned about what motivated the attackers? I’d suggest that a reasonable response (not the kind we got from Bush/Cheney to 9/11) would not.
As is often the case, reality is a bit more nuanced than Republicans try to paint it. We learned that when one of the leaders of the Benghazi attack – Ahmed Abu Khattala – was captured.
Despite extensive speculation about the possible role of Al Qaeda in directing the attack, Mr. Abu Khattala is a local, small-time Islamist militant. He has no known connections to international terrorist groups, say American officials briefed on the criminal investigation and intelligence reporting, and other Benghazi Islamists and militia leaders who have known him for many years…
On the day of the attack, Islamists in Cairo had staged a demonstration outside the United States Embassy there to protest an American-made online video mocking Islam, and the protest culminated in a breach of the embassy’s walls — images that flashed through news coverage around the Arab world.
As the attack in Benghazi was unfolding a few hours later, Mr. Abu Khattala told fellow Islamist fighters and others that the assault was retaliation for the same insulting video, according to people who heard him.
In other words, one of the leaders of the attack had no known connections to international terrorist groups and used the video as a tool to recruit fighters to join in the attack. On the other hand, it was not a spontaneous reaction from protesters. It was a planned attack. People like Rep. Jim Jordan seem incapable of grasping that kind of nuance. Here he is lecturing former Secretary Clinton:
“You picked the video narrative. You picked the one with no evidence. And you did it because Libya was supposed to be…this great success story,” he said during one of his filibusters. “You can live with a protest about a video. That won’t hurt you. But a terrorist attack will.”
That, my friends, is the best distillation of Republican confusion about Benghazi that you’ll find anywhere.
The other thing I learned from watching the hearing is all about Hillary Clinton. I’ve always known that she is smart. But two things I’ve heard about her – especially during this campaign – is that her age is an issue and she tends to be evasive rather than direct when she feels challenged. Those two critiques were banished as completely irrelevant on Thursday.
The kind of stress a president deals with is only secondarily physical. It is mostly emotional. We need to know that the person we elect to that position is capable of keeping their cool when a lot of difficult things come their way. At 67, Hillary Clinton just withstood 11 hours (minus breaks) of people coming at her with every kind of attack and negative insinuation they could find. She did something I’m pretty sure I couldn’t have done under those circumstances…kept her cool and answered every question with intelligence and patience. Here’s how Jeb Lund summarized it:
She didn’t lose her cool under circumstances that would have sent any of us screaming for the exit or climbing over the dais to try to brain someone with a shoe. She was by far the most prepared person at the hearings and the most fluent in the details. She said the two funniest lines of the day, broke into a big natural grin, delivered a fairly riveting account of the fog of war during the events of the compound attack, and became visibly affected when talking about those harmed during it. The Republicans on the Benghazi committee just inadvertently put her through an 11-hour stress test of her intelligence, patience and composure as a leader. They just vetted their own opposition, and they did it through such a protracted, disingenuous, confused and obnoxious display that even people who have every right to feel ambivalent about her doubtless felt a twinge of sympathy.
People will continue to have their policy differences with Clinton. But no one can doubt that she’s got what it takes to do the job.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, October 24, 2015
“Default Prevention Act, Really?”: House GOP Plays With Matches; Will The Economy Burn?
The Republican-led Congress has just 12 days before the nation’s debt ceiling has to be raised. If lawmakers fail to meet their responsibilities, the country won’t be able to pay its bills, we’ll default on our debts, the full faith and credit of the United States will be in jeopardy, and the economic consequences will be severe.
At this point, congressional Republicans appear to be divided into two groups. The first, which includes the GOP leadership, knows it must raise the debt ceiling, but this faction has no idea how to complete the simple task. The second, which includes far-right members in both chambers, wants to hold the debt ceiling hostage, threatening to crash the economy on purpose unless Democrats meets their demands, but this faction hasn’t bothered to fill out the ransom note.
So far, markets aren’t panicking, because everyone is working from the assumption that Republicans won’t deliberately create a recession for no reason – though anything’s possible.
What’s striking, though, is how little work is getting done. We’re 12 days away from a dangerous deadline – Congress is only in session for 7 of those 12 days – and Congress isn’t even trying to move towards a resolution yet. Instead, the GOP-led House spent time yesterday on something called the “Default Prevention Act.”
With the potential for an unprecedented federal default two weeks away, House Republicans on Wednesday plan to pass legislation not to avert disaster, but rather to manage it, channeling daily tax collections to the nation’s creditors and Social Security recipients if the government’s borrowing limit is not lifted.
Let’s put this in everyday terms. Imagine a gang told you they plan to burn down your town unless their demands are met. You’re skeptical and tell the gang to go away. But the gang members stick around and say, “Before we burn down your town, let’s start making plans to prioritize which parts of the town you might want to rescue before we turn violent.”
That, in a nutshell, is what the “Default Prevention Act” is all about – the gang members passed a bill yesterday to prioritize which bills they’ll allow the United States to pay, and which bills will get burned by their fire.
The problem, of course, is that all of this is completely insane.
What we’re talking about is a plan in which Republicans try to manage the fire from their own arson, “channeling daily tax collections to the nation’s creditors and Social Security recipients” after they refuse, on purpose, to raise the debt ceiling.
And why would GOP lawmakers prioritize the nation’s creditors and Social Security recipients? On the former, because so much of the global economy rests on U.S. Treasury bonds, a deliberate default risks crashing financial systems across the planet. That would be … catastrophically bad.
On the latter, congressional Republicans don’t want to be responsible for cutting off Social Security checks for millions of American seniors, right in time for the holidays.
The “Default Prevention Act” is, by this measure, misnamed. It would prevent the nation from defaulting on some debts, while encouraging the nation to default on others.
Making matters just a little worse, Slate’s Jordan Weissmann explained that the GOP plan appears to be illegal and literally impossible to implement.
[E]ven if the government could borrow to pay bondholders and seniors, crossing the debt limit would still be plenty apocalyptic. Treasury’s computers still might not be capable of prioritizing its obligations, in which case we’d still end up failing to pay some bondholders despite Congress’s intentions.
The mere threat of such an accidental default could cause markets to seize. If the Treasury did successfully keep money flowing to its lenders, meanwhile, the government still wouldn’t be able to cover all of its other costs, and thus would be forced to implement massive, immediate spending cuts to other programs, likely dragging the U.S. and probably the rest of the world into a recession.
He’s referring, of course, to a recession that could easily be avoided by simply raising the debt ceiling – a simple, procedural vote that costs nothing.
Tick, tock.
By: Steve Benen, The Maddow Blog, October 22, 2015
“Whistling Past The Graveyard”: Why The Raging Dysfunction In Washington Is The New Normal
When Majority Leader Kevin McCarthy abruptly withdrew from his frontrunning candidacy to succeed John Boehner as speaker of the House, it underscored just how dysfunctional the “governing” Republican Party has become. The dispute within the party is not ideological — the degree of policy consensus within the Republican conference is remarkable. Rather, the dispute is tactical. Some party elites, like Boehner, understand that there’s no chance that Republican objectives like repealing the Affordable Care Act and defunding Planned Parenthood can be achieved with Barack Obama in the White House. Members of the Freedom Caucus, conversely, believe (or pretend to believe) that threatening government shutdowns and debt defaults can somehow force Obama to sign bills erasing his primary policy achievements. No wonder nobody wants the job.
It’s tempting to think that this rolling crisis, in which threats to the basic functioning of government become routine, is a temporary phenomenon. But there is a very real and frightening possibility: This is the new normal. The presence of two ideologically coherent parties, combined with the separation of legislative and executive authority, is probably going to produce similar results whenever there’s divided government.
There is a tendency to assume that the American constitutional order is inherently functional, and that there’s no problem that can’t be solved by replacing some bad actors in the legislature and/or judiciary. Nostalgic appeals to a more functional era are pervasive. In a recent interview with Gawker‘s Hamilton Nolan, for example, the dark-horse presidential candidate and legal scholar Lawrence Lessig asserted that the government “has no capacity to make decisions any more” and “it’s trivially easy for any major reform on the left or the right to be blocked,” but that “it’s a 20-year problem” based on the fact that “such a tiny number of people are funding campaigns.”
This is a happy story, despite the outward appearance of despair. If American constitutionalism is essentially functional, but has been ruined by some 5-4 campaign finance decisions issued by the Supreme Court, the problems can be solved. Not easily, but it’s possible to think that the next unified Democratic government can restore order.
But the truth is considerably darker. First of all, Lessig underestimates how difficult major social reform has always been in the United States. It was “trivially easy” for any major reform to be stopped before the author of Citizens United had even been born. The vast majority of the federal welfare and regulatory state was passed during two very brief periods: FDR’s first term and LBJ’s first three years in office. Otherwise, the alleged Golden Age of American politics was largely defined by statis.
Furthermore, it’s not a coincidence that the brief periods of reform occurred during periods of unusually large Democratic supermajorities in Congress. And even these periods were far from unalloyed liberal triumphs: The New Deal, for example, gave disproportionately fewer benefits to African-Americans to win support from Southern Democrats. The American constitutional order was designed to make major changes difficult, and it has largely succeeded.
Lessig is right, however, that some things have gotten worse in the last 20 years. It’s never been easy to pass major reform legislation, and as the first two years of the Obama administration shows, it’s still possible given enough Democrats in Congress. What has changed is that it used to be possible to do basic tasks like keeping the executive and judicial branches properly staffed and the government funded. Congress could also at least pass compromises on issues of lower-order importance. Things have gotten genuinely worse in recent decades in these respects.
Where Lessig is wrong is to think that there’s a magic bullet that can fix the problem. Reducing the role of money in politics and increasing access to the ballot are salutary initiatives that would improve things at the margin, but the dysfunction of American government is rooted deeply in the American constitutional order.
As Matt Yglesias recently explained at Vox, the fundamental problem is the diffusion of accountability that comes from separating the legislative and executive branches. As Yglesias observes, “Within a presidential system, gridlock leads to a constitutional trainwreck with no resolution.” Whether Democrats or Republicans are blamed for dysfunction in a period of divided government depends largely on who voters tend to support on a tribal level.
A paradox of the American separation-of-powers system is that actions like a government shutdown can hurt the reputation of Congress as a whole without threatening the electability of most individual members, a paradox Senate Majority Leader Mitch McConnell has exploited brilliantly. Whereas congressional leaders in the opposition used to think that they had to collaborate on at least some issues with a president to avoid being punished, McConnell and other contemporary leaders have recognized that denying the president accomplishments hurts the president more than it hurts them. And lest any Republican member of Congress consider returning to the old norms for the good of the country — I know, but let’s pretend for a second — they’re likely to face a viable primary challenge.
Does this mean, as Yglesias argues, that American democracy is “doomed”? This is unclear. But it does mean that the dysfunction in Washington, D.C., is likely to get worse before it gets better. And pretending that any single reform — no matter how worthy in itself — can solve these deeper problems is whistling past the graveyard.
By: Paul Lemieux, The Week, October 20, 2015
“Romney Wants Credit For Obamacare”: Mitt, ‘Without Romneycare, I Don’t Think We Would Have Obamacare’
Given the Affordable Care Act’s striking successes, it’s not surprising that its champions would look for some credit for bringing health security to millions of families. President Obama, Nancy Pelosi, Harry Reid, and plenty of other Democrats have reason to be proud of one of this generation’s greatest policy breakthroughs.
It is a little jarring, though, seeing a Republican look for credit, too. MSNBC’s Benjy Sarlin reported this afternoon:
In a surprising move, Mitt Romney seemingly took credit on Friday for inspiring the Affordable Care Act – after famously running as the 2012 Republican nominee on a platform of repealing the law.
Romney championed and signed a comprehensive health care law in Massachusetts when he was governor. Known as “Romneycare,” it had strong similarities with Obamacare, including a mandate to purchase insurance, but he had long resisted comparisons between the two. In a Boston Globe obituary of Staples founder and longtime Romney backer Thomas Stemberg, however, the former Republican nominee finally embraced the connection.
“Without Tom pushing it, I don’t think we would have had Romneycare,” Romney told the Boston Globe. “Without Romneycare, I don’t think we would have Obamacare. So, without Tom a lot of people wouldn’t have health insurance.”
And as a factual matter, there’s certainly some truth to that. Romney approved a state-based law that served as an effective blueprint for President Obama’s federal model. The two-time failed Republican presidential candidate has a point when he says “Romneycare” helped pave the way for “Obamacare.”
But that doesn’t make his new boast any less jarring. Romney wants credit for one of the president’s signature accomplishments – which Romney was committed to tearing down just a few years ago?
Those who followed the last two presidential elections closely may recall that Romney’s position on health care got a little convoluted at times. The former one-term governor initially said he believed his state-based plan could serve as a model for the nation. Then he said the opposite.
By 2012, Romney was promising voters that he would – on his first day in the White House – issue an executive order to undo the federal health care law without congressional input, regardless of the consequences.
Or to use Romney’s phrase, he vowed to scrap health insurance for “a lot of people.”
Three years later, however, Romney is apparently shifting gears once again, taking partial credit for the system he embraced, then rejected, then vowed to destroy, and is now re-embracing again.
And to think this guy struggled as a candidate for national office.
Update: MSNBC’s report added, “After an uproar on social media, Romney clarified in a Facebook post that he still opposed Obamacare, but did not backtrack on his apparent praise of the law’s expansion of insurance coverage and its ties to his own legislation.”
Romney wrote that “getting people health insurance is a good thing,” which he followed with some dubious criticisms of the ACA. To my mind, his online clarification changes very little about the substance of the story.
By: Steve Benen, The Maddow Blog, October 23, 2015
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