Criminals Should Get Same Leniency as Corporations, Judge Says

By MATT APUZZO

New York Times

OCT. 23, 2015

http://www.nytimes.com/2015/10/24/us/politics/criminals-should-get-same-leniency-as-corporations-judge-says.html?ref=todayspaper&_r=0

WASHINGTON — For years, when corporations paid big fines to escape prosecution for their misdeeds, critics fumed. Why, they asked, shouldn’t big companies be treated like common criminals?

A federal judge turned that question on its head this week as he lamented being asked to approve yet another corporate settlement. Perhaps, he said, common criminals ought to be treated more like big companies.

Judge Emmet G. Sullivan, of the United States District Court for the District of Columbia, took aim at a favorite tool of the Obama administration for addressing corporate wrongdoing: a form of probation known as a deferred prosecution agreement. If companies behave for the length of the agreement, the matter is closed without any criminal record.

The judge said individual defendants should enjoy the same opportunities. While it is not uncommon for judges to criticize outcomes that they see as unjust, it is highly unusual for them to so explicitly advocate — and at such great length — a change in approach.

Judge Sullivan’s 84-page opinion — in what could have been a short, straightforward decision — is the latest influential voice to join a growing chorus of both liberals and conservatives who see the American criminal justice system as fundamentally unfair.

The ruling comes amid a rapidly changing environment: The White House is approving clemency applications at historically high rates; support is coalescing on Capitol Hill to ease sentencing laws; and law enforcement leaders around the country have declared that too many Americans are in prison for too long. Though the federal prison population has declined for the first time in decades, America remains the world’s largest jailer by far; its prison population nearly equals China’s and Russia’s combined.

Justice Department officials agree in principle with Judge Sullivan’s critique and have encouraged Congress to ease tough sentencing laws that were passed at the height of the crack epidemic. Emily Pierce, a department spokeswoman, noted that under an initiative begun in 2013, prosecutors were already ordered to prioritize more serious crimes, while looking for alternatives to prison for low-level offenders. Fewer low-level criminals being charged means fewer people eligible for deferred prosecution. The department has also strongly supported drug courts, which essentially offer the same second chance that companies are given.

At the same time, the Justice Department recently promised to get tough on corporate executives after years of criticism in the aftermath of the financial crisis that bankers, in particular, escaped punishment because their companies agreed to pay big fines. It was that promise, followed days later by a deferred-prosecution agreement with General Motors, that ignited Judge Sullivan’s fury.

Judge Sullivan was appointed to the federal bench by President Bill Clinton. He previously served as a municipal judge and a local appellate judge in Washington, having been appointed by Presidents Ronald Reagan and George Bush.

He called G.M.’s $900 million settlement “a shocking example of potentially culpable individuals not being criminally charged.” G.M. admitted that it misled the public about auto defects, but neither the company nor its executives were prosecuted, “despite the fact that the reprehensible conduct of its employees resulted in the deaths of many people.”

“The court is disappointed that deferred-prosecution agreements or other similar tools are not being used to provide the same opportunity to individual defendants to demonstrate their rehabilitation without triggering the devastating collateral consequences of a criminal conviction,” Judge Sullivan wrote.

Justice Department figures show deferred-prosecution agreements are rare for both individuals and companies. But the number of cases against organizations and companies is so tiny — 150 or so each year, compared with 160,000 or more individual prosecutions — that these deals occur at a much higher rate in corporate cases, which also tend to be higher profile.

Deferred-prosecution deals are attractive because they spare companies the consequence of criminal convictions, such as stock collapse and a loss of contracts. For people, the effects can be even more severe. The American Bar Association has identified tens of thousands of consequences of criminal conviction, which demonstrates how a single arrest can cost people their jobs and homes.

President Obama has indicated that he will make a criminal justice overhaul one of the most important issues of his remaining time in office. He became the first sitting president to visit a federal prison. On Thursday, he defended the Black Lives Matter movement, which has been criticized by police unions in particular as being anti-police. Mr. Obama plans to speak about changing the criminal justice system next week at the annual meeting of the International Association of Chiefs of Police in Chicago.

Much of the public debate has focused on reducing the prison population by cutting sentences for those serving long sentences for nonviolent crimes. Lost in the debate, Judge Sullivan said, has been the importance of keeping people out of jail in the first place. “This oversight is lamentable, to say the least!” he wrote.

He said criminal justice reform should offer people “the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions.”

While Judge Sullivan cannot make policy from the bench, the opinion shows the momentum behind efforts to improve the system, said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers.

“It has finally seeped into the public consciousness that there is something wrong,” he said. “All of a sudden, a nation wakes up and realizes we’ve created this unbelievable cadre of second-class citizens.”