U.S. Attorney Spars with Professor Over Recidivism for White v. Blue-Collar Defendants
By Douglas Gillison | September 23, 2013 2:23 pm

NEW YORK – As the U.S. Sentencing Commission unveiled its efforts last week to revise how white-collar crime is punished, New Jersey’s top federal prosecutor warned of the danger in what he said was the mistaken belief that well-to-do defendants have more to lose than do poorer ones when they are sentenced.

U.S. Attorney Paul J. Fishman emerged from the audience of a sentencing commission symposium here last Thursday at John Jay College of Criminal Justice to make his remarks during a brief question-and-answer session following a panel discussion.

Ellen Podgor (photo by D. Gillison)

Appearing on the discussion panel, Ellen S. Podgor, a professor of white-collar crime research at Stetson University College of Law and editor of the White Collar Crime Prof Blog, told the gathering that white-collar criminals in general exhibited lower rates of recidivism, were more easily deterred with shorter sentences and sometimes did not know their actions were in fact criminal.

“The last thing I want to say is that collateral consequences for the white-collar area need to be factored in,” said Podgor. “A bricklayer who goes into prison comes out a bricklayer. A plumber who goes into prison comes out a plumber.”

“A lawyer who goes into prison doesn’t come out a lawyer. A stock broker who goes into prison doesn’t come out a stock broker,” said Podgor. “That’s a difference.”

Fishman stepped to a microphone in the theater audience and delivered an animated response.

“I think there’s a big danger in the argument that Professor Podgor made,” he said. “Honestly, the people for whom the collateral consequences are often most severe are the electricians and the plumbers.”

“People who lose their law licenses probably deserve to lose their law licenses if they commit insider trading or participate in a substantial fraud,” he said. “They may not be able to practice law, they may not be able to run a Fortune 500 company but they do OK.”

Less well educated defendants fared worse, said Fishman, “because they can’t live in public housing, they can’t get licenses, they can’t get jobs.”

Fishman also said data on recidivism could be skewed in favor of white-collar defendants because federal prosecutors often chose not to prosecute first-time violent offenders but did chose to prosecute first time white-collar offenses.

“And so I think we have to be very careful about worrying a little bit too much about the people who look like us,” said Fishman.

Fishman at the microphone on Thursday.

He said Podgor's views held "danger."

And warned of excessive worry for "people who look like us."

Podgor responded that the goal of controlling crime could best be served by tailoring punishments to the specific nature of white-collar defendants.

“I agree with you in many respects that there are collateral consequences of a significant amount in all categories,” said Podgor.

“One of the aspects that you did bring out was that there was more of a structure that many of the white-collar offenders have, that support that they have,” she said. “That’s going to go to the fact that they’re probably not going to be recidivists. That’s going to go to the fact that we probably don’t have to deter them again.”

Some white-collar defendants may indeed be motivated out of greed, said Podgor.

“But there are also going to be many that it’s not going to serve one of our punishment theories by sending them to prison,” she said.

Responding to a question by email on Friday, Podgor said she might have been misunderstood.

“My point was that some of the collateral consequences suffered by white collar offenders are different from those faced by others,” she said. “If I were at a conference on another aspect of the guidelines, for example drug offenses, I would likely be making a similar point – but the collateral consequences would be different.”

“So I hope that unlike Mr. Fishman, you will recognize that my comments were not saying that white collar offenders should be given special or better treatment,” said Podgor. “Rather, that the commission should consider ‘real differences’ in the system when and if they decide to redesign” sentencing guidelines for fraud.

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