Lucian E. Dervan and Ellen S. Podgor
This chapter discusses the prosecution of white-collar criminals and outlines the stages of the investigative and judicial process. It notes differences in white-collar cases from those involving street crimes. This chapter recognizes the role of corporate internal investigations, government investigations, the grand jury process, white-collar trials involving complex corporate criminality, and sentencing. It notes how pleas and the use of “shortcut” offenses play an important role in this area of the law. It also discusses the players in a white-collar investigation and prosecution, and the guidelines that assist the prosecutorial discretion.
Some white-collar offenders receive very long prison sentences. However, many others are able to cut deals, especially if there is the risk of serious collateral damage to employees or customers or if they can portray their conduct as unintended. The low chance of conviction and the high chance of a “light” sentence for complex, multiple-jurisdiction frauds involving sums of money that are vast compared with other types of crime for gain should make us reflect on the effectiveness, dissuasiveness, and proportionality of existing sentencing practices. The criminal careers of fraudsters and their stakes in respectability vary, and we cannot make clear evidence-based decisions on how sentencing will affect them. If conviction and formal censure alone were sufficient to put an end to offending (as for some professionals who lose their licenses), then the only reasons for tougher sentences would be retribution and a social demand for equality of suffering.