At first blush, it seems odd for an American contributor to an international conference on sentencing to focus on "high end" federal white collar sentencing. After all, federal cases make up a relatively small part of the U.S. criminal justice system. (Between October 2005 and September 2006, about 1,132,290 people were sentenced for a felony in state courts, (1) and 73,009 in federal courts.) (2) Even within the federal system, white collar cases of all sorts are a relatively small part of a criminal docket dominated by immigration, drug, and gun cases, which together comprised nearly 73% of all federal cases in 2009. (3) And the "crimes involving fraud, deceit, theft, embezzlement, insider trading, and other forms of deception" that accounted for 9.5% of 2009 cases includes a great many offenders and offenses of the middling sort. (4) Moreover, what is meant by "high end" anyway? Does a vague directional reference allow one to sidestep the longstanding scholarly debate about defining "white collar crime?" (5)
The provisional answer is "yes," at least when broadly speaking of sentencing policy. One need not be either rigorous or comprehensive in defining the relevant class of cases to appreciate the outsized role that the sentences given to the well-off and well-placed play in perceptions about the fairness and efficacy of American criminal justice. Whether driven by public interest or schadenfreude, media coverage gives these cases of financial scandal and public corruption a profile disproportionate to their number. And the work of Tom Tyler and others (6) suggests that this profile and the impressions it leaves will potentially play a critical role in the legitimization of enforcement efforts more generally. Indeed, while I make no rigorous argument of historical connection, it is worth noting that federal sentencing reform has coincided with an intensification in the federal commitment to pursue the grander white collar offenders--not simply bank embezzlers, con artists, and corrupt line actors in the public and private sector--and that both occurred during the same post-Watergate period of destabilized governmental authority. (7) In both projects, one sees strains of the "leveling down" that Jim Whitman has found characteristic of American punishment practices. (8)
The story of how the federal system has dealt with high end white collar offenders is worth telling. After all, sentencing stories are one of the United States' most valuable exports--generally ones that teach other countries what not to do. This one will show the convoluted path we have taken to come--at least with respect to doctrinal regulation--nearly full circle, the closest we've come to the 1980s in the last three decades. Given how much judicial, adversarial, and legislative energy has been spent to go what seems like such a short distance, a clear-eyed assessment of the project seems in order for Americans. Perhaps others can profit from our experience as well.
After briefly sketching out this story, I hope to explore the lessons, with particular attention to the interaction between institutional and procedural structures and theoretical white collar sanctioning goals. The precise nature of these institutional and procedural structures is jurisdiction-specific, and my references will be exclusively U.S. federal. (9) But I hope to highlight the need to consider such structures when considering how to sentence in cases that will regularly test the perceived commitment of any jurisdiction's sentencing regime to both equity and equality.
THE NEARLY CIRCULAR ROAD TAKEN
Back in the 1970s, Kenneth Mann and his Yale colleagues--who presciently studied white collar sentencing just as the area started to attract prosecutorial attention--did a lovely job capturing how judges approached these cases in a regime of unbounded discretion: judges certainly considered …