Pubdate: Sun, 04 Aug 2002
Source: Deseret News (UT)
Copyright: 2002 Deseret News Publishing Corp.
Contact:  http://www.desnews.com/
Details: http://www.mapinc.org/media/124
Author: Erik Luna
Note: Erik Luna is associate professor of law at the University of Utah and 
author of "Misguided Guidelines" to be published by the Cato Institute.

SENTENCING SYSTEM A PETRI DISH FOR POLITICAL OPPORTUNISTS

Watching the market these days is enough to make a stockholder seasick. 
Americans have weathered the turbulence of Wall Street before, but the 
Titanic-size dive of some of capitalism's apparently unsinkable enterprises 
has sent many investors scrambling for life preservers. To a certain 
extent, the market plunge was preordained by a giddy exuberance for any 
high-tech venture, no matter how frivolous, guaranteeing that the dot-com 
bubble of the '90s would burst in spectacular fashion.

What has turned investor despondence into rage, however, are the ongoing 
revelations that some captains of industry were involved in corporate 
shenanigans that would make robber barons blush.

Now people want blood - and in an election year, national politicians are 
more than eager to quench this bloodthirst with tough rhetoric and legislation.

As might be expected, the sometimes hysterical calls for reform went beyond 
civil business regulation and into the arena of criminal justice. In a 
speech to Wall Street, President Bush proposed an increase in the maximum 
sentence for mail and wire fraud, and called upon the U.S. Sentencing 
Commission to enhance punishment for corrupt executives. Since that time, 
federal lawmakers have fallen all over themselves trying to look even 
tougher, offering both newfangled business crimes and harsher punishments 
for existing offenses.

As Rep. Michael Oxley quipped, "Summary executions would get about 85 votes 
in the Senate right now."

This past Tuesday, a corporate reform bill was finally signed into law. 
Among other things, it creates a new crime for executives who submit false 
financial reports and increases the punishment for securities fraud to 25 
years in prison.

But there are good reasons to be skeptical about the use of the federal 
criminal justice system as a tool of corporate reform.

To begin with, most of the proposed changes would have little if any effect 
on the prosecution of white-collar criminals. Virtually all of the recent 
corporate misconduct can (and will) be handled with crimes already on the 
books.

In turn, the increased punishment provides little more than prosecutorial 
convenience, given that any experienced assistant U.S. Attorney knows how 
to "stack" or multiply fraud charges to obtain the desired sentence.

No matter - the effectiveness of criminal legislation is often less 
important to politicians then the sound bites it produces.

Think of Polly Klaas, the 12-year-old murder victim whose image was 
exploited by campaigning politicians in support of California's infamous 
"Three Strikes and You're Out" sentencing law. Officials didn't seem to 
care much that "Three Strikes" was theoretically deficient, enormously 
expensive, and downright cruel in some applications. Instead, most 
political candidates rode this morally and economically bankrupt law all 
the way to election-day victories.

Consider also Congress' enactment of harsh punishment in the wake of the 
crack cocaine hysteria of the 1980's. Although politicians pointed to it as 
evidence of their toughness on crime, the legislation has had little effect 
on drug markets while inundating federal prisons with disproportionately 
minority and low-level offenders.

In a very real sense, then, the recurrent use and abuse of sentencing laws 
for political gain, particularly by federal officials, represents an 
ongoing fraud on the American people.

Quick fix solutions implicating the federal criminal system - creating 
hybrid crimes, for instance, or toying with the amount of punishment - help 
elect politicians, all of whom know (or should know) the limited and 
sometimes negative consequences of their latest social panacea.

More importantly, sentencing machinations for political ends have spawned a 
Moby Dick-size red herring on the problems with punishment in federal court.

Unknown to many Americans, federal sentencing is controlled by a largely 
unaccountable and insulated agency, the U.S. Sentencing Commission. This 
"fourth branch" of government has assumed Congress' power to make criminal 
law and usurped much of the judiciary's traditional authority over criminal 
punishment. Through its enactment of mandatory "sentencing guidelines," the 
Commission has all but eliminated the ability of trial courts to mete out 
individualized punishment and simultaneously expanded the power of federal 
prosecutors, giving them another tool to squeeze out information and guilty 
pleas from defendants. With unique prosecutorial authority over penalty 
reductions and lenient rules of evidence at sentencing hearings, federal 
law enforcement needs more leverage in the criminal process like Arthur 
Anderson needs more shredders.

The congressional propensity to criminalize and punish only obscures real 
scandals: Federal sentencing law is determined by an unconstitutional 
"junior varsity Congress"; the guidelines have drastically shifted 
authority from judges to prosecutors, remak-ing the former into little more 
than rubber stamps during sentencing; and defendants are being punished 
under a confusing, hypertechnical, mechanical process that treats people 
like widgets rather than human beings.

Like most Americans who have lost their shorts over the past weeks and 
months, I have little sympathy for corporate executives who swindle 
innocent investors and irreparably damage their companies and employees to 
boot. But I also lack compassion for political opportunists who use the 
criminal process as a means to capitalize on gut-wrenching events.

If federal officials were really serious about their jobs - and the 
sentencing regime erected under their watch - they would stop tinkering 
with federal punishment for personal, electoral gain and start talking 
about large-scale reform of a broken penal system.
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MAP posted-by: Beth