02 November 2005

Guns and Briefcases

There's an old—and all too accurate—aphorism that a man with a briefcase can steal more money than any man with a gun (quoting the Don Henley version). We then turn to the Fifth Circuit's action yesterday in sending the 24-year sentence for securities fraud imposed on James Olis back for reconsideration. I am rather of two minds about this.

On the one hand, the Fifth Circuit's decision was virtually mandated by any reasonable reading of the record in the context of the Federal Sentencing Guidelines. It's fairly clear that the decision went beyond what it had to do at a minimum, but in this particular case that's a good thing: Fifth Circuit law on white-collar-crime aspects of the Sentencing Guidelines is at best murky. (Admittedly, that's not a lot different from elsewhere…) Based on the typical sentence handed down in white-collar-crime matters, and even on other sentences arising from the same fraudulent scheme, 24 years seems excessive.

But, in the abstract, perhaps not too excessive. The real problem is not that 24 years is outrageously more than Olis "should have gotten"; it is that the sentencing guidelines—which do not impose mandatory minimums for white-collar crimes!—treat white-collar crime far too generously. Whether this is because Congress et al. are concerned for their peers ("there but for grace go I"), or that the vast majority of white-collar crime victims never even recognize that they are victims—let alone complain about it—thereby hiding the extent of the problem, or simply that because white-collar crime isn't overtly associated with violence, the guidelines essentially give embezzlers (etc.) a better deal, really doesn't matter. Throw in the greater tendency of prosecutors to recommend alternatives to prison1 and the more-expensive2 defense counsel who usually appear for white-collar defendants, and we've got a serious problem.

Here's an example. An individual convicted of transporting six custom bongs in interstate commerce has a base offense level of 12. That same offense level corresponds to fraud netting from $200,000 to $400,000. To put that in a different perspective: One can take a year's in-state tuition from 25 freshman at the University of Illinois and get a lower sentence than the guy with six bongs in the trunk of his car. I don't propose raising all white-collar crime guidelines to equal those for murder; instead, both ends need to come toward the middle.

  1. Of course, some of this is probably because breaking a white-collar-crime operation usually requires cooperation of at least one guilty party. As hard as it is to infiltrate a drug gang, it's vastly harder to infiltrate a boiler-room stock operation.
  2. And presumably more-capable. That's not a criticism of public defenders—just acknowledgement that the resources available to a white-collar defendant ordinarily exceed those available to a first-time drug offender from the projects by several orders of magnitude, and that criminal defense does require resources.