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Legality and Equality: Plea Bargaining in the Prosecution of White-Collar and Common Crimes

Published online by Cambridge University Press:  01 July 2024

Jack Katz
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Abstract

On the basis of a case study of a U.S. Attorney's office, I sketch differences in the prosecution of white-collar and common crime in order to draw out implications for equality in current proposals to reform plea bargaining. The extent to which the powers of investigation and prosecution are empirically distinct differs with the two categories of crime. Because of greater social distance between prosecutor and investigator in the enforcement of laws against common crimes, formal records give a misleading impression that legitimate prosecutorial power is being bargained away. Because there is relatively little social distance between the prosecutorial and investigative functions in the prosecution of white-collar crime, the formal record greatly underrepresents the exercise of the power not to prosecute. Reforms that would make bargaining over formal dispositions more consistent with legality or “due” process appear likely to discourage lenience in the prosecution of common crimes while leaving largely unaffected the low visibility exercise of the power not to prosecute white-collar crime.

Type
Current Empirical Research
Information
Law & Society Review , Volume 13 , Issue 2 , Winter 1979 , pp. 431 - 459
Copyright
Copyright © 1979 Law and Society Association.

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Footnotes

I would like to thank David Trager, U.S. Attorney for the Eastern District of New York from 1974 to 1978, for his unstinting assistance, Rick Abel for heroic editing, and Dan Freed for identifying an important ambiguity. This paper is an offshoot of a larger study at Yale University funded by LEAA Grant 78 NI AX 0017. Points of view or opinions stated are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

References

ALSCHULER, Albert W. (1968) “The Prosecutor's Role in Plea Bargaining,” 36 University of Chicago Law Review 50.Google Scholar
ALSCHULER, Albert W. (1975) “The Defense Attorney's Role in Plea Bargaining,” 84 Yale Law Journal 1179.Google Scholar
BALDWIN, John and McCONVILLE, Michael (1977) Negotiated Justice: Pressures to Plead Guilty. London: Martin Robertson.Google Scholar
BUGLIOSI, Vincent (1974) Helter Skelter. New York: Norton.Google Scholar
CLARKE, Thurston and John J., TIGUE Jr. (1975) Dirty Money. New York: Simon & Schuster.Google Scholar
COHEN, Richard M. and Jules, WITCOVER (1974) A Heartbeat Away. New York: Viking.Google Scholar
CROWLEY, George D. (1975) “The Tax Fraud Investigation,” 1 Journal of Criminal Defense 155.Google Scholar
DAVIS, Kenneth Culp (1969) Discretionary Justice [The Edward Douglas White Lectures]. Baton Rouge: Lousiana State University Press.Google Scholar
EDELHERTZ, Herbert (1970) The Nature, Impact and Prosecution of WhiteCollar Crime. Washington, D.C.: Government Printing Office.Google Scholar
EISENSTEIN, James (1978) Counsel for the United States. Baltimore: Johns Hopkins University Press.Google Scholar
FEELEY, Malcolm (1979) The Process is the Punishment. New York: Russell Sage Foundation.Google Scholar
GEIS, Gilbert and Robert F., MEIER (1977) (eds.) White-Collar Crime. New York: Free Press.Google Scholar
GELB, Barbara (1975) On the Track of Murder. New York: William Morrow.Google Scholar
GIBSON, Larry S. and Frank A., ZUNNO (1978) Report to the Attorney General of the National Economic Crime Project. Washington, D.C.: U.S. Department of Justice.Google Scholar
GOLDSTEIN, Abraham S. and Marvin, MARCUS (1977) “The Myth of Judicial Supervision in Three Tnquistorial' Systems,” 87 Yale Law Journal 240.Google Scholar
GREENWOOD, Peter W., Jan M., CHAIKEN, Joan, PETERSILIA and Linda, PRUSOFF (1975) The Criminal Investigation Process, Volume III: Observations and Analysis. Santa Monicia, Calif: Rand Corporation.Google Scholar
HARVARD LAW REVIEW (1977) “Note: Plea Bargaining and the Transformation of the Criminal Process,” 90 Harvard Law Review 564.Google Scholar
HOFFMAN, Paul (1974) Tiger in the Court. Chicago: Playboy.Google Scholar
KAMISAR, Yale, Wayne R., LAFAVE and Jerold H., ISRAEL (1974) Modem Criminal Procedure. St. Paul: West.Google Scholar
KAPLAN, John (1965) “The Prosecutorial Discretion—A Comment,” 60 Northwestern University Law Review 174.Google Scholar
KAPLAN, John (1977) “American Merchandising and the Guilty Plea: Replacing the Bazaar with the Department Store,” 5 American Journal of Criminal Law 215.Google Scholar
KLEIN, John F. (1976) Let's Make a Deal. Lexington, Mass.: Lexington Books.Google Scholar
MILLER, Frank W. (1969) Prosecution: The Decision to Charge a Suspect with a Crime. Boston: Little, Brown.Google Scholar
MORRIS, Norval and Gordon, HAWKINS (1977) Letter to the President on Crime Control. Chicago: University of Chicago Press.Google Scholar
REISS, Albert J. Jr. (1971) The Police and the Public. New Haven: Yale University Press.Google Scholar
ROSETT, Arthur I. and Donald R., CRESSEY (1976) Justice by Consent: Plea Bargains in the American Courthouse. Philadelphia: Lippincott.Google Scholar
SHAPIRO, Susan (1976) A Background Paper on White Collar Crime. Unpublished manuscript, Yale University.Google Scholar
SUDNOW, David (1965) “Normal Crimes: Sociological Features of the Penal Code in a Public Defender's Office.” 12 Social Problems 255.Google Scholar
SUTHERLAND, Edwin H. (1949) White Collar Crime. New York: Dryden.Google Scholar
THORNBURGH, Richard L. (1976) “The Prosecutor's Role in the Search for The Truth, the Whole Truth and Nothing But the Truth.'” Remarks of the Assistant Attorney General, Criminal Division, United States Department of Justice, to the Criminal Law Section, State Bar of Wisconsin, at its Annual Meeting, Fontana, Wisconsin (June 18).Google Scholar
TYLER, Harold R. Jr. (1965) “The Defense of the White Collar Accused,” 3 American Criminal Law Quarterly 124.Google Scholar
WEAVER, Suzanne (1977) Decision to Prosecute: Organization and Policy in the Antitrust Division. Cambridge, Mass.: MIT.Google Scholar
WHITE, Welsh S. (1971) “A Proposal for Reform of the Plea Bargaining Process,” 119 University of Pennsylvania Law Review 439.Google Scholar
WILSON, Stephen V. and A. Howard, MATZ (1977) “Obtaining Evidence for Federal Economic Crime Prosecutions: An Overview and Analysis of Investigative Methods,” 14 American Criminal Law Review 651.Google Scholar