Department of Justice, Sentencing Law, U.S. Attorneys Offices, White-Collar Crime

Putting People In Prison To Get To The Cool Kids’ Table

A Washington Post article this past weekend gave me the willies.  It was about SIGTARP – the Special Inspector General for the Troubled Asset Relief Program.

Leave aside that the article hits the tired drum that more people should have gone to prison after the financial crisis – because, of course, the only thing that causes an economic downturn is crime.

Instead, check out how SIGTARP shows us that they’re doing good work as a law enforcement agency.

[Special Inspector General Christy] Romero noted that the average prison sentence imposed by courts for crimes investigated by SIGTARP is five years and nine months — nearly twice the national average for white-collar fraud.

Right – SIGTARP is a serious player because it’s getting serious prison time…

This is a popular move for second-tier (T-2?) law enforcement agencies. A few years ago, DOJ’s Antitrust Division’s Criminal Section went around the country trotting out numbers showing that they prosecuted white-collar folks who went to prison a lot more than you probably thought they did.

This is unseemly, for at least two reasons.

First, it’s craven. Does the U.S. Attorney’s Office in S.D.N.Y. tell people how long the folks it prosecutes go to prison? No, it does not. Why not? Because everyone knows that SDNY is a credible law enforcement agency that does respectable work. Fancy people want to work at SDNY. It is T-1. The “our targets go to prison longer than you’d think” move is the law enforcement equivalent of the pimply high-school kid picking on the fat kid. It’s gross in high school and it’s gross in the adult world.

Second, and more importantly, what is really motivating these law enforcement officials? Is it a sound decision that the people they’re pursuing need to be punished, or is it a desire to bump their numbers, and, in turn, their institutional legitimacy? Doesn’t trotting these numbers out suggest that the second concern is motivating, rather than the first?

If your uncle was investigated by SIGTARP, wouldn’t you have a legitimate suspicion that, perhaps, he isn’t going to prison for whatever his sentence is because of what he did, but rather because SIGTARP is trying to make a name for itself?

Federal law enforcement officials have a massive amount of power. They choose which cases to investigate, which charges to bring, and they have the vast resources of the United States behind them to help make cases when they do decide to bring them.

Sure, some folks ought to be prosecuted, and some folks ought to go to prison. But the federal government’s law enforcement apparatus ought to bend over backwards to show that its motives are pure.  Bragging that your little-known agency puts people in jail for longer than established and respected offices undermines your legitimacy rather than enhancing it.

More reason to be suspicious of what motivates some federal prosecutors came from Baltimore this past week.

Roy Lee Clay was accused of being a heroin dealer. Federal prosecutors offered him a plea to the mandatory minimum in the case — a ten year prison sentence.

Clay turned down the offer and went to trial. He lost.

The prosecutors filed repeat papers — notices that bring to the court’s attention that a person has prior convictions. These repeat papers brought Clay’s mandatory minimum sentence to life in prison. There’s no parole in the federal system. Absent a successful appeal, Clay will never see freedom again.

The AUSAs in this case didn’t have to file repeat papers. They had already offered a ten-year deal, which, presumably, means they think ten years was an adequate punishment for Clay’s crime.

Set aside the Sixth Amendment issue about whether Clay’s right to a trial was compromised. Was it morally permissible for these AUSAs to decide, unilaterally, that Clay would spend the rest of his life in a room made of metal and concrete, and die there, when they thought a ten-year sentence was enough?

The case has received no small amount of attention — a story ran last week in the New York Times.

Let’s canvass the justifications that emerged for the government’s approach to this case.

One justification is that this maneuver is legal. True — it is. But legal isn’t the same thing as moral. Interning Japanese Americans during World War II was legal, but it was plainly immoral.

What could be a moral justification for this government decision?

The most frequent justification offered is that these enhancements are necessary to get people to plead guilty — if the government doesn’t threaten massive sentences, then more people will go to trial.

I checked Pacer on this case — the trial took 14 days (Clay was tried with two co-defendants). Assume that the prosecutors took double the amount of time in trial to prepare for that trial — with prep time the decision to go to trial cost 42 days of AUSA time. The view, then, is that the price for 42 days of lawyer work is the rest of a person’s natural life.

Some BigLaw partners are now billing at $1200 an hour, but that’s still nowhere near as galling as the charge for attorney time in the U.S. Attorney’s Office for the District of Maryland.

The federal criminal justice system gives massive power to federal prosecutors. That power has to be exercised in a way that is legitimate. Yet, from SIGTARP mounting heads on a wall in the Washington Post, to the story in the New York Times about the Maryland U.S. Attorney’s Office, to a Fourth Circuit opinion criticizing the government for having a “heavy foot on the accelerator” in its race to get massive prison time, there are too many reasons not to trust the way that power is exercised.


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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