A reader of the FCPA Blog asked yesterday about apparent disparities in sentences between 'white collar' and 'blue collar' FCPA defendants, as he called them.
Part of the answer, as the reader said, is the economic standing of defendants. As I discussed in a prior post about repeat players in the criminal justice system, executives working for multinational corporations -- those your reader termed 'white collar' FCPA defendants -- often have access to better legal counsel.
Most FCPA sentences are a result of plea agreements. Plea agreements usually allow for a downward departure from the non-binding Federal Sentencing Guidelines. When coupled with the plea-making power that higher echelon attorneys bring to the table, this could explain the sometimes lighter sentences imposed on executives from multinational corporations.
But other factors are at play in producing sentencing disparities.
Crimes that violate the public’s trust, such as higher level FCPA violations, are particularly outraging to sentencing judges. However, the more complex the criminal conspiracy, the harder it is to implicate higher level corporate executives.
On the rare occasions when corporate masterminds are convicted, many judges consider it an opportunity to send a message that professional standing alone does not equate to being above the law. (This sentencing trend has appeared in several non-FCPA high profile white collar cases: Jamie Olis – Dynergy – 24 year sentence; John Rigas – head of Adelphia Cable – 15 year sentence; Bernie Ebbers – WorldCom CEO – 25 years, etc.)
But even when masterminds are prosecuted and sentenced, there's no uniformity. Why? One theory is that in urban federal court districts that see high white collar enforcement activity, judges may be more liberal and independent, and therefore less inclined to follow the Sentencing Guidelines. In more isolated districts, judges with less experience in white collar enforcement may be more inclined to follow DOJ recommendations for longer sentences.
Whatever the causes, sentencing disparities can have lasting repercussions on deterrence. The best crime prevention is voluntary obedience to laws through procedural justice. Procedural justice means the perceived fairness of how authorities respond to crime, as opposed to distributive justice which measures the fairness of the outcome.
A key component of procedural justice is neutrality, or the consistency in the application of laws, rules, and procedures by the authorities. If the DOJ’s FCPA unit is not able to maintain their perceived legitimacy, then they are providing the same “Condemnation of the Condemners” neutralization excuse discussed in my previous post.
Without sentencing consistency, federal prosecutors cannot maintain the perceived legitimacy of FCPA enforcement. That will undermine attempts to deter future FCPA violations.
Joe Cassin is a law enforcement officer in Texas. He can be contacted via the FCPA Blog here.