A Question of Costs: Considering Pressure on White-Collar Criminal Defendants
Ribstein, Sarah, Duke Law Journal
Because of the expense of defending white-collar criminal cases, individual corporate defendants can rarely fund their own defenses and often rely on their employers to pay their legal costs. Employers, however, often feel pressure to refuse to pay their employees' attorneys' fees. When employers decline to pay their employees' defense costs, defendants can be, in effect, coerced into pleading guilty because they do not have the financial resources to defend themselves at trial.
Commentators have discussed the problem of pressure on white-collar defendants but have not traced the cause of the pressure back to one of its most basic roots: criminalizing conduct that is prohibitively expensive for an individual to defend. Others have addressed the question of whether corporate behavior has been overcriminalized but have not focused on the high cost of defending these crimes as one of the key arguments against criminalizing the behavior in the first place. This Note intertwines the two strands of the debate over corporate crime: the strand evaluating the existence of and solutions to pressure on individual white-collar defendants and the strand questioning the overcriminalization of corporate law. This Note adds to both strands by focusing on one aspect, high defense costs, that contributes to the pressure, makes it unique to corporate crime as opposed to street crime, and puts it out of the reach of commonly suggested procedural fixes. The Note concludes that white-collar criminal prosecutions inherently place financial pressure on defendants, and legislatures should consider this pressure when deciding what behavior to criminalize.
The often uncertain outcomes of criminal trials mean that even innocent defendants can face a terrifying choice: accept a minimal punishment by admitting that they have committed a crime they feel they did not commit or risk being found guilty at trial and being subject to a sentence many times as harsh. This was the choice facing Jamie Olis, a midlevel executive accused of wrongdoing in an energy transaction during his employment at Dynegy. (1) Unlike many criminal defendants, Olis was far from indigent (although not wealthy) and was able to afford an attorney, making him ineligible for a public defender. (2) His defense was also unlike most criminal defenses: the conduct in question involved a "complex series of [financial] transactions" that a layperson would struggle to understand. (3) Although Dynegy had promised its executives funding for defending job-related allegations, the firm breached its obligation under threat of indictment and left Olis to fend for himself. (4) Still, Olis was sure of his innocence, believed he was acting according to accepted business practices, and decided to go to trial with the defense that he could afford. (5)
Unfortunately, Olis's defense proved to be less than he hoped for (6) and very likely less than he would have gotten if Dynegy had honored its agreement to indemnify him. His lawyer did not contest the government's evidence of market loss, which became a key factor in lengthening Olis's sentence (7) and probably would have required hiring an expensive expert. (8) Olis was sentenced to twenty-four years and four months in jail, (9) and his lawyer later said that the lack of funds had "limited his ability to mount a strong defense." (10)
Jamie Olis's sentence was later reduced to six years on appeal, (11) but his ordeal has been cited as an example of the problems faced by white-collar defendants whose employers refuse to pay their legal fees. (12) During his trial, Olis "couldn't afford the $100,000 to print the [12 million pages of] documents" that the government had "used computer programs to sort through." (13) As opposed to the one lawyer that Olis could afford, who Olis could only pay by selling his house, "It]he government had prosecutors, Federal Bureau of Investigation agents, postal inspectors and accounting experts work the case. …