Academic journal article Journal of Criminal Law and Criminology

A Golden Age of White-Collar Criminal Prosecution

Academic journal article Journal of Criminal Law and Criminology

A Golden Age of White-Collar Criminal Prosecution

Article excerpt

The year 2005 began with a Hartford jury considering whether former Cendant Corp. Chairman Walter Forbes was guilty of accounting fraud. The year would close with a second jury reconsidering Forbes' fate after the first trial ended in a deadlock. (1)

The deliberations were fitting bookends to a year in which white-collar crime took center stage in the American media. Former WorldCom executive Bernard Ebbers was sentenced to twenty-five years for conspiracy, securities fraud and false regulatory filings. (2) John Rigas was sentenced to fifteen years in prison while his son was sentenced to twenty for their roles in stealing $100 million from Adelphia Communications. (3) Dennis Kozlowski, the former CEO of Tyco whose lavish lifestyle, according to the St. Louis Post-Dispatch, "would make a pharaoh blush," was sentenced to between 8.5 and 25 years for looting company funds. (4) Martha Stewart was released from a federal prison after serving five months for obstruction of justice and conspiracy to obstruct justice. (5) Even the year's worst domestic natural disaster, Hurricane Katrina, spawned a wave of white-collar charges. (6)

2006 is promising to outdo 2005. Former Enron officers Kenneth Lay and Jeffrey Skilling are preparing for their 2006 trials in the wake of perhaps the most infamous corporate disaster ever. (7) In Illinois, former governor George Ryan's trial for campaign fraud continues. (8) Lewis "Scooter" Libby, a member of the Bush administration's inner circle, will likely go to trial for obstruction of justice, making false statements, and perjury in the wake of the Department of Justice's investigation regarding the leaked identity of CIA operative Valerie Plame. (9)

It's not difficult to hypothesize why many white-collar cases, with their defendants facing the possibility of trading in their mansions for federal prisons, are attractive to the media. However, the wealth and power of certain white-collar defendants does more than make a good story. While many criminal defendants are represented by public defenders, white-collar cases may be litigated by attorneys making upwards of $5 million a year. (10) Defense strategies are tested before mock juries at a price tag of $100,000 a pop. (11) And, of course, the mere presence of certain high-profile defendants can alter the dynamics of the trial. As stated by criminal lawyer Michael Levy: "When the client speaks, that overwhelms the other evidence." (12)

At the same time, white-collar crime is not restricted to wealthy CEO's. Health care fraud is often perpetrated by physicians. (13) Environmental crimes can be committed by anyone who owns property, including ordinary homeowners. (14) Two defendants charged with fraud in the wake of Hurricane Katrina were actually incarcerated in a Louisiana prison when they allegedly committed fraud. (15) The diversity of those committing white-collar crime, and the diversity of the subject matter itself, is evident in the fact that scholars cannot even agree upon a definition of white-collar crime. (16)

In our 2006 Symposium, "The Changing Face of White-Collar Crime," the editors of this Journal have chosen two paths in assembling the contributions contained herein. Diverse a subject as white-collar crime is, certain common issues span all (or nearly all) of its subcategories. These works address such overarching issues as the Federal Criminal Code, federal sentencing guidelines, and attorney-client confidentiality. At the same time, we believe that thoroughly addressing such a topic also requires examining issues specific to certain types of white-collar crime. As such, other contributions to this issue address such areas of white-collar crime as health care fraud, securities fraud, and environmental crimes.

In our first piece, Kathleen Brickey examines the changing culture of white-collar crime in, "In Enron's Wake: Corporate Executives on Trial." (17) One of the foremost scholars on white-collar crime, and author of the leading casebook on the subject, (18) Professor Brickey has previously written on the "building block technique" of white-collar prosecution whereby lower executives plead guilty, agreeing to testify against their superior executives in exchange for a lenient sentence, and thereby forming the building blocks of the cases against the top executives. …

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