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“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

October 25, 2015 Posted by | Corporate Crime, Corporations, Criminal Justice System, Deferred Prosecution Agreements | , , , , , , , | Leave a comment

“Meaningful Change”: Eric Holder Transformed The Attorney General Into An Advocate For The Poor

On September 25, Attorney General Eric Holder announced his resignation. He made history as the nation’s first African American attorney general and will most likely be remembered for his vigorous enforcement of the nation’s civil rights laws. He deserves equal accolades for his leadership in working to reform the nation’s broken criminal justice system. Since his appointment as attorney general, he has consistently criticized the draconian federal sentencing laws that require lengthy mandatory minimum sentences in nonviolent drug cases and has decried the unwarranted racial disparities in the criminal justice system, calling the phenomenon “a civil rights issue … that I’m determined to confront as long as I’m attorney general.” And he certainly kept that promise.

Before becoming the nation’s top law enforcement officer, there was no indication that Eric Holder would ultimately become an advocate for poor people incarcerated in our nation’s prisons and jails. After all, Eric Holder spent most of his professional career as a criminal prosecutor. He started out as a prosecutor in the Justice Department’s Public Integrity Section where for 12 years he worked to put away corrupt public officials. During his five years as a judge in the Superior Court of the District of Columbia, he earned a reputation as a tough sentencer, locking up countless young African American men for long periods of time.

Eric Holder left the bench to become the first African American United States Attorney for the District of Columbia. When Holder was appointed to be D.C.’s chief prosecutor, I was the city’s chief defender. As Director of the Public Defender for the District of Columbia, my interactions with Holder’s predecessors were very adversarial. Holder was determined to change that. Soon after his appointment, he visited my office and promised a change in policies and practices. Although he instituted a number of programs in his office, he did not make efforts to reduce the prison population or address racial disparities. He was more polite than his predecessors, but there was absolutely no indication that he would ultimately lead the charge to reverse the nation’s shameful record of incarcerating more of its citizens than any western nation in the world.

In 1997, Holder continued his career as a prosecutor when he became the nation’s first African American deputy attorney general under Janet Reno during the Clinton administration. As second in charge at the Justice Department, Holder supported and championed Reno’s positions on criminal justice issues. At that time, sentencing laws required judges to sentence those in possession of five grams of crack cocaine to a mandatory minimum of five years in prison while that harsh sentence could only be imposed in cases involving powder cocaine when the amount was 500 grams. The enforcement of these laws resulted in much harsher sentences for African Americans. Although Reno was in favor of narrowing the disparity, she strongly opposed eliminating it, and, as her deputy, so did Holder.

At the end of Clinton’s second term, Holder went into private practice before returning to lead the Justice Department that he’d worked in for most of his career. From the beginning of his term as attorney general in 2009, Eric Holder began to champion vigorous reform of the criminal justice system. The vast majority of criminal cases are prosecuted in state courts, and the Attorney General has no supervisory power over state and local cases. However, Holder consistently used his bully pulpit to advocate for criminal justice reform and took direct action to order reforms in the federal system throughout his tenure as attorney general.

As early as June 2009, Holder spoke at a symposium on reforming federal sentencing policy sponsored by the Congressional Black Caucus. In his remarks, Holder announced that he had ordered a review of the department’s charging and sentencing policies, consideration of alternatives to incarceration, and an examination of other unwarranted disparities in federal sentencing. He stated that “the disparity between crack and powder cocaine must be eliminated and must be addressed by this congress this year.”

The following year, Holder gave remarks at the Justice Department’s National Symposium on Indigent Defense, where he spoke passionately about how the Sixth Amendment right to counsel was not being fulfilled for poor people charged with crimes. He pledged his commitment to improving indigent defense, stating that he had “asked the entire Department of Justice … to focus on indigent defense issues with a sense of urgency and a commitment to developing and implementing the solutions we need.” And he fulfilled that pledge. In October 2013, the Justice Department awarded a total of $6.7 million to state and local criminal and civil legal services organizations that provide defense serves for the poor. Most recently, Holder filed a statement of interest expressing his support for a lawsuit against the state of New York that challenges the deficiencies in New York’s public defender system.

Holder’s most comprehensive criminal justice reform efforts were announced in a speech he gave at the American Bar Association’s Annual meeting in 2013. In these remarks, Holder said, “Too many people go to too many prisons for far too long and for no truly good law-enforcement reason.” He also decried the unwarranted racial disparities, stating that “people of color often face harsher punishments than their peers. … [b]lack male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. This isn’t just unacceptableit is shameful.” Holder then went on to announce sweeping reforms, including ordering federal prosecutors to refrain from charging low level nonviolent drug offenders with offenses that impose harsh mandatory minimum sentences; a compassionate release program to consider the release of nonviolent, elderly, and/or ill prisoners; the increased use of alternatives to incarceration; and the review and reconsideration of statutes and regulations that impose harsh collateral consequences (such as loss of housing and employment) on people with criminal convictions.

We have yet to witness the positive effects of Holder’s criminal justice legacy, and some may suggest that he didn’t go far enough. But few will disagree that his efforts surpass those of any previous attorney general. Did Holder’s views on criminal justice evolve over time? Or did he always believe that the system was broken and in need of reform? Perhaps both statements are true. What matters is that at the end of the day, when he was in a position to effect meaningful change in our criminal justice system, this former prosecutor became a champion of liberty. And for that, this former public defender will forever be grateful.

 

By: Angela Davis, Professor of Law at American University Washington College of Law; The New Republic, September 27, 2014

September 28, 2014 Posted by | Criminal Justice System, Eric Holder, Poor and Low Income | , , , , , , | Leave a comment

   

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