Thursday, May 18, 2017

Trump and Sessions Got It Wrong

Disclaimer: I am a registered Republican (although I can no longer vote) and would have supported President Trump in the last election.

In my inaugural blog, http://www.whitecollarguru.com/2016/12/does-prison-serve-purpose-and-for-whom.html I spoke about the underlying purposes for prison and how for many white collar crimes, prison does not always serve a purpose. Most of my comments thus far have been focused on the issues facing white collar defendants. I have mentioned on more than one occasion that someone who has never been through the justice system or the prison system can not properly opine on how to fix the system. I am going to digress for today and focus on non violent drug crimes as it has been in the news of late. 

Drugs are dangerous. There is no debating that Cocaine, Heroin, Fentanyl, need to be kept off the streets and that those who distribute them need to be punished under the theory that society does need to be protected from such individuals. Yes, they belong in prison.  In the 1980s the drug hysteria, gave rise to the (ongoing) war on drugs and with it mandatory minimum sentences. Unlike most cases where judges have discretion to go below sentencing guidelines, if the case involves a mandatory minimum, the judge does not. As seen from the chart http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf some of the minimums are quite harsh. It is quite probable that someone in his 20s will get 30 years in prison for a relatively small amount of drugs simply because it is his second offense. While no one will argue that prison time is an important remedy for drug trafficking offenses, 30 years is quite excessive. I have met quite a few individuals who are well into their 60s and have gotten such sentences. Having spent time with them, I assure you that there is no reason whatsoever for them to be incarcerated for such extended periods. They are by and large decent people who yes, made mistakes, but are not the "evil drug dealers" so often portrayed in the media. They are unable to return to drug dealing even if they would want to and they certainly do not represent a threat to society. What's worse is even when they are released, they are utterly unprepared to reintegrate into society. Their best and most productive years have been spent in prison. There are those who will argue that a 20 year sentence deters such crimes. This is argument is refuted that drug use is more prolific than ever. We have lost the war on drugs. According to the Center for Disease Control, fatal drug overdoses were the highest on record in 2014. Does anyone think for a second that mandatory minimums and all the money thrown at the war on drugs has even made a dent? The deterrent argument as a basis for mandatory minimums has been utterly refuted.

President Obama, recognized the insanity of these sentenced and commuted more sentenced than any of his predecessors. Almost all of his commutations were reserved for non violent drug offenses. The problem with Obama's approach was that he did not focus at all on many of the white collar inmates who were also serving disproportionately long sentences. Remember, one count of wire can carry a sentence of 20 years. Obama was interested in reducing the prison population and directed US Attorneys across the nation to adjust charges so as to avoid the mandatory minimums, According to a 2013 directive by then Attorney General Eric Holder, prosecutors were told not to specify the amount of drugs involved in cases of low level or non violent drug offenders thereby enabling judges to issue sentences below the mandatory minimums. Sadly, the the Trump administration through the new Attorney General Jeff Sessions, has withdrawn this memo and has directed prosecutors that "It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense," http://www.politico.com/f/?id=0000015b-fbf5-de0a-a15f-fffdeb680000

The reasons for for this directive are quite curious. Is the Trump administration trying to establish itself as tough on crime? Are they trying to play into the fears of every parent by, in the face of evidence to the contrary, asserting that a policy of mandatory minimums will keep their children safe? Is Jeff Sessions motivated by racial prejudices since this is a policy that is likely to disproportionately affect minorities? Did the private prison companies such as Correction Corp of America  heavily donate to the Trump campaign? Is Russia building private prisons in Siberia so that they can be paid to house non violent drug offenders thereby replacing lost oil revenue? 

Whatever the reason for the decision, the directive is flawed and illogical. As Brett Tolman, a former US Attorney under George W Bush correctly observed, "Decades of experience shows we cannot arrest and incarcerate our way out of America’s drug problem. Instead, we must direct resources to treatment and to specifically combating violent crime. This will help law enforcement do our jobs better.” The approach of using excessive incarceration unnecessarily destroys lives, breaks up families and unnecessarily costs the government billion of dollars every year; money that can be better used forming a new and actually effective war on drugs. Mr. Sessions has it wrong.

Thursday, May 11, 2017

Is It OK To Snitch??????

A typical white collar criminal case will have multiple defendants as even the most sophisticated crimes rely on at least the complacency of more than one individual. Sometimes everyone is charged in one indictment covering multiple defendants, sometimes each defendant is indicted in a separate case, and sometimes certain individuals are charged while others are not even though their conduct was essentially the same. Understanding why some cases are separated while some are joined is a question for prosecutors. On the question of who is charged and who is not, I have taken a cynical view on it and come to believe that those decisions are dictated on the basis on who they can get and who they do not think they can get. I also have come to believe that the more publicity a potential defendant has in a case, the more likely he is to be charged. Public perception can be a motivating factor and given two potential defendants who committed the same alleged act, the one with the greater public exposure is more likely to get charged. Does anyone really think Martha Stewart would have been indicted in a case that only prevented $45,000 in losses if she would not have been such a public figure? 

As previously discussed, most cases are settled not by going to trial but by pleading guilty to a lesser charge than what would be decided at trial. The goal of every person in that situation is to get as short of a sentence as possible. Prosecutors, will often dangle incentives to "help" shorten the sentence. Almost always this entails testifying against another defendant or giving them information to help them build a case against another defendant or even giving them information that they can use to induce another defendant to accept a plea. These mechanisms are known by rule 35 or 5k1 letters and have to be submitted by the prosecution. Essentially, they both ask the judge to reduce a sentence based on cooperation. In the interest of full disclosure, I did receive a rule 35 for what the prosecution says was my assistance in helping them extract a plea out of another defendant. I will tell you that for the most part, people who receive such reductions are not looked upon kindly in prison especially if their testimony resulted in someone going to prison who otherwise would not have and who really did nothing wrong. 

I take a somewhat unconventional view on the matter as you will see. Obviously, someone facing prison has to do whatever he can to minimize the impact on his family and therefore has to do whatever he can to make sure he gets out as soon as possible. On the other hand, is it really fair to do so at the expense of another family by helping to send someone to prison who never wronged you and who would otherwise not be sentenced? Is it fair to send someone who did wrong you but without you testimony would not go to prison? Is there a justification to lie to get someone else sent to prison if it means you will serve less time? Is it fair to aid the prosecutors if the person is going to prison but did not wrong you but you do have damaging information? Finally, is it alright to tell the prosecution to go after someone else whose actions were similar to yours but for some reason was not charged? These are such ethical dilemmas that most defendants confront when the prospect of incarceration move from possibility to probability. 

While the need for revenge is often innate, it is also a terrible characteristic. Someone who is vengeful is unable to focus on moving forward as he is always trying to avenge what happened in the past. He does not have peace of mind. If someone was complicit and wronged you was not charged, the odds are that he will get caught up in something else anyway. Similarly, someone who sends someone off to prison even if it is to lower his time is simply a selfish individual. There is nothing worse than a liar. The reality is that if a defendant is giving untruthful testimony, it will be discovered at trial anyway thereby eliminating any chance for a sentence reduction.

We are therefore left with the dilemma of cooperating against someone who is likely to go to prison anyway. Does it make a difference if he wronged you or is it fair to reason that since he is going to prison anyway, there is nothing inherently wrong about giving the prosecution some additional information? I can only base my opinion on my experience. If someone did wrong a defendant during the case, for example if he made misrepresentations to him and he is going to go to prison, in all likelihood anyway, I do not see any reason not to share any information with the prosecution if it means you will lessen your time. Yes, you are taking revenge to a degree, but your testimony is not necessarily the reason this person is going to prison; the prosecution had other information anyway. Furthermore, in many ways you are going to prison because of this other person. As far as giving information when there is no malice toward the other person, I am somewhat conflicted. I was not given such an opportunity so I cannot say for certain what I would have done, but I probably would not have gone out of my way to share that information. At the same time, I do not begrudge someone who would do so. The person who I did cooperate against was someone who was going to prison anyway and had certainly wronged me as well.

Karma is a bitch. I mentioned before that offering someone up who otherwise would not have been prosecuted, is selfish and vengeful. The universe tends to catch up with these types of people. These are people who manged to do something that resulted in your indictment which resulted in your taking a plea. Just because they escaped an indictment this time does not mean they will next time. I had such people in my case. Without going into detail, there were a few individuals who caused me to end up in my case and could have, if they wanted to taken steps that would have prevented my getting indicted. I certainly had information that may have resulted in these individuals being indicted, but I did not snitch.  Imagine, my surprise when over seven years later I was sitting in the prison camp, reading the Wall Street Journal and came across an article where the leader of the group that got me into this jam was indicted in a massive kickback scheme and was actually being snitched on by someone who helped him carry it out. He was being indicted on charges that he bribed the head of a union to invest funds into he fledgling hedge fund. While I am not proud of it, I felt no small measure of glee when I read this article. The point is, he did it to himself, and I did not have to employ the repugnant mechanism of revenge to make it happen. Incidentally, over the next six months the fund filed bankruptcy and more individuals were indicted.

The opposing goals of minimizing prison time but also no becoming a government witness is one of the hardest balancing acts a defendant has to perform. The fact that the government uses this as a tool can often be seen as unethical. Someone who wronged him will eventually get caught up in something else. Leave it to G-d to handle that! What a person has to realize is  that while the prison term will end, decisions he makes will remain with him for the rest of his life.

Monday, May 8, 2017

WHAT TO SAY AND WHAT NOT TO SAY TO CHILDREN

Being a parent is quite possibly the greatest responsibility  any individual will take upon himself or herself. There is no greater challenge than to be a parent. A person is literally responsible for both the physical and mental health for another human being. This responsibility is in no way abrogated when facing criminal charges, facing prison or even when serving time in prison. If anything a parent in these situations has to take extra steps to make sure that the legal issues he faces does cause him to become derelict in his responsibilities as a parent. Of course, since children will be affected by the trial and/or prison sentence and may be exposed to any potential media coverage of the parent under investigation it is important to understand how to talk yo you children and how how much to tell them. Regardless of how much is said, a child is being asked to grow up a little too fast when a parent is facing criminal charges. The key is to keep a constant balance by telling them enough too keep them prepared but not too much so as to create undue anxiety.

A lot depends on the age of your children. If the children are very young and nothing in the way of a trial or plea is imminent, there really is no reason to tell them very much if anything at all. They will most likely not understand and children are scared by nature. Nothing good will come from telling a child under the age of 10 or so information that he  won'y find out on his own anyway. With children that age, it is best to remember that they need to be insulated as much as possible and the legal troubles outside the home must never impact the ability to be a parent inside the home.

If the children are older, the approach is not as simple. Obviously, if there are articles written about the parent and if their friends in school will know it is important to let them know what is going on. Children need to be told that just because something is written in the newspaper or online does not mean it is true. Unfortunately, the reality is that 90% of the "facts" printed in the newspaper are at best inaccurate and the percentage is even higher for what is posted online. Children even when they are older tend to be scared of the unknown. The need to be reminded that their parents love them and that hopefully everything will work out for the best. It is important to convey to the children that you understand they may have questions and that they can ask them as well.

As the case progresses, kids need to be somewhat included in the developments. For example, if a child finds out on 24 hours notice that his father is going to prison he will be very scared, upset and will not have the time necessary to mentally prepare for what is going to be a cataclysmic change in his life. This does not bode well for trust between a parent and child post-incarceration. By the same token, if an indictment may or may not come or may not come for a couple of years, there is really no point in inserting needless anxiety into a child's life. My wife and I wrestled with how much to tell our children and when, all the while knowing that in the age of Google, they will most likely at some point of their lives research the case on their own anyway.

Once and indictment is imminent, and assuming the children are old enough to understand certain complexities, it is critical to let them know what is going on. Again, less is more. They do need to be told something, just not everything. The only thing worse than their children finding on the 5 o'clock news or from a friend that their parent has been indicted or arrested is the child realizing that the parents knew that this was happening and did not let them know. There obviously needs to be a careful balance here as it is important for children to hold their parents in high regard yet there is a need for honesty. Telling a child that nothing is going to happen, and the parent is not going to have to go away for a while is not advisable since it may not be true. If the parent does have to serve some time, in the eyes of the child he is not only a criminal but a liar as well. A better approach is to tell them that hopefully everything will be fine and just because someone is arrested does not necessarily mean that prison is in the future. It is obviously important to remind the children that you love them unconditionally and that no matter what happens that will not change.

Things get a little more complicated when a plea has been agreed upon. A child's reaction, especially a child who has already learned the basic legal concept of innocent until proven guilty, will be so confused as to why a plea is being taken instead of going to trial where the government will have to prove guilt "beyond a reasonable doubt". As I have discussed in previous blogs, when contemplating a plea, issues such a guilt or innocence are essentially irrelevant. This is the approach a parent has to keep in mind when explaining why a plea is being taken. If the child is old enough, he has had time to mentally adjust to the new reality and has at least contemplated the notion of a parent being gone for some time. Rather, than focus on the issue of guilt and innocence, it is better to reorient the conversation by focusing on what is best for the family. A child needs to understand, that this is what is best because in the even the parent does go to trial, there is a chance he will be found guilty and will have to spend more time in prison that he will by taking a plea. My taking a plea, a parent is doing what is best for the family because while he will be absent for some time in the near future, this is a temporary situation. Essentially, a parent is telling the child that "I want to make sure I am there to watch you grow up, and I am not going to risk missing that for anything even if it means I have to leave the family for a little while".  This approach accomplishes three goal. Firstly, it avoids exposing the children to the anxiety of a trial, secondly it provides a measure of closure for the children, and lastly and quite possibly most critically, it shows the children that you love them and that your decisions are being made because you care about them.

When a parent contemplates the types of conversations he will have with children of his lifetime, issues surrounding incarceration probably do not make the list. What makes it even more complicated is that a parent has to ensure his children are not neglected. At the same time, once the children do know what is going on, that they feel comfortable enough to talk to the parents with any fears they may have. Every child is different and there really is no magic formula. For some children, the knowledge that their parents are willing to listen to their concerns at any time, is comfort enough. For others, there may be a need to enlist an outside professional. My wife and I did not seek outside professional help and looking back, I think that was the right decision. Once I was indicted, we kept the children appraised of the major developments with the oldest knowing a lot while the youngest knew relatively nothing. As with any other issues a parent faces when raising children, what is said is just as important as what is not said.

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