FBI Director James Comey was grilled last week on Capitol Hill where Republicans condemned and Democrats lauded his decision to not recommend prosecuting presidential candidate Hillary Clinton for her actions of handling (mishandling) classified information. As I watched Comey’s testimony, I was struck by how two groups of people could look at the same acts of a person and have such polarizing views as to whether or not a criminal act had occurred. Politics aside, we need to have more of a consensus on what constitutes a crime.
There are thousands of federal criminal laws, some of which seem nonsensical. Take this recent one from my favorite Tweeter, @CrimeADay, “21 USC § 331, 343(g) & 21 CFR § 139.160(b) makes it a federal crime to sell vegetable egg noodles that aren’t ribbon-shaped.” Yes, that is a law. With laws like this, we should wonder why there are not more people in our federal prisons than the current 200,000 inmates we house.
Former Attorney General Eric Holder was criticized for not prosecuting any high-level executives as a result of the financial crisis. The public continues to think that bankers got away with ruining our economy and avoiding prison. Recently, the Department of Justice decided not to pursue a civil case against former Countrywide CEO Angelo Mozilo for mortgage fraud. Meanwhile, low level players like Jamila Davis in New Jersey were sentenced to years in prison for cases that only a hand full of people can even recall. The public views this disparity as inequality in the justice system when in fact it is most likely that few of us even understand our laws … which is more disturbing than inequity.
Take the cases involving securities laws, in particular insider trading. In one of the most famous cases, we had Todd Newman (Diamondback) and Anthony Chiasson (LevelGlobal) convicted by a jury in December 2012 and sentenced to prison terms of of 54 and 78 months, respectively. Further, their firms voluntarily entered into non-prosecution agreements with the government to avoid criminal charges and paid millions in fines. A few years later, Newman’s and Chiasson’s convictions were overturned, and the settlements that their firms made with the government were voided as well. Even U.S. Attorney Preet Bharara, who strongly disagreed with the Newman decision said of Congress getting involved to clarify securities laws said, “And you know, a little clarity is always good.” The fact is that there was no crime in the Newman/Chiasson case because we believe in the Rule of Law, or at least we should.
Judge Jed Rakoff (Southern District of New York), always one to speak his mind, wrote that innocent people are pleading guilty to crimes despite their not believing in their guilt. They do this to avoid the potential of long prison terms as a result of Federal Sentencing Guidelines and mandatory minimums which “… provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains.” The guilty pleas that come out of 95% of all indictments are more likely a result of people fearing the punishment resulting from the law rather than understanding the law.
The government is also pushing corporations to assist in determining which individuals it believes have violated a law. The Yates Memo, in what appears to be a good faith effort to hold individuals accountable for their actions, rewards companies for naming individuals and punishes them for not naming them when misconduct is discovered. However, if the government is having trouble figuring out who has violated the law, how can we expect corporations to be better at it? In September 2015, Deputy Attorney General Sally Yates was at NYU School of Law talking about holding individuals accountable for criminal acts within corporations by saying, “In the most basic ways, though, corporate misconduct isn’t all that different from everything else DOJ investigates and prosecutes. Crime is crime.” It apparently is not that easy.
It is becoming apparent that we are at a point where the confusion of our laws is leading many to believe that there is a specter of inequity when, in reality, it is a lack of understanding of the law. When we have to hold a Congressional hearing where the head of the FBI is having to explain the law to members of Congress who wrote the law, we have a problem. While, for the moment, the public is focused on the actions of whether or not a presidential candidate violated a law, it should be more concerned about the implications of not understanding the laws at all.
Walt Pavlo is President of Prisonology and co-author of “Stolen Without A Gun,” which he co-wrote with Neil Weinberg (Bloomberg).
Disclaimer
The views, opinions and positions expressed within all posts are those of the author alone and do not represent those of the Program on Corporate Compliance and Enforcement or of New York University School of Law. The accuracy, completeness and validity of any statements made within this article are not guaranteed. We accept no liability for any errors, omissions or representations. The copyright of this content belongs to the author and any liability with regards to infringement of intellectual property rights remains with them.