The Prosecutorial Mindset: Just Punish More

May 20, 2021

By Sara Kropf

Too many prosecutors think the solution to our broken criminal justice system is more punishment. If you don’t believe me, take a look at the recent article by a 27-year veteran of the Department of Justice in The Atlantic.

Paul Pelletier’s big-picture point is certainly not novel: rich white-collar criminal defendants are treated better by the criminal justice system than poor white-collar criminal defendants.

His solution? DOJ should increase its prosecutorial focus on rich white-collar defendants. Punish them more, he says, and the system will be fairer. Then we’re treating rich people just like we treat poor people.

I disagree with his solution. And I was also struck by his statement that he quit DOJ because he didn’t want to “participate” in this unfair system.

Let’s back up.

Pelletier is right that rich people accused of white-collar crimes often obtain better outcomes in the criminal justice system. They are able to mount a vigorous defense to government overreach. Wealthy people under investigation can afford big law firms to investigate and research every possible defense and present a compelling case to the government. Facing a team of defense lawyers and the prospect of an embarrassing loss at trial, a prosecutor may rightly rethink an aggressive prosecutorial theory.

Individuals who are not wealthy don’t have these same advantages. They may not be able to afford a private lawyer during the investigative stage of a case. People under investigation are not entitled to a public defender, so they are often lawyer-less until actually charged with a crime.

(Our clients are often in the middle ground, lucky enough to be able to afford a small firm to push back against the government. We’d argue that we’re just as good at it as a big firm, even within a reasonable budget, but I digress.)

Here’s how Pelletier describes his reason for leaving the Department:

I spent 27 years fighting white-collar crime and corruption at the Department of Justice, first in the Tax Division, then in the Miami U.S. Attorney’s Office, and finally in the Criminal Division. I have witnessed firsthand precisely how unjust the American criminal-justice system can be. Practically everyone knows, on some level, that the rich get better treatment than the poor. But I saw it so clearly: The wealthy live in a different legal reality entirely, one in which blatant financial fraud routinely goes unpunished. For the poor, even the merest transgression can lead to ruined lives. This problem has always existed, but it has gotten worse—far worse—in recent years. I eventually quit the DOJ because I no longer wanted to participate in this system.

Pelletier offers two supposedly contrasting examples to show the injustice that led to his resignation.

Example 1: In 1999, Pelletier prosecuted a tax return preparer who engaged in a $100,000 fraud. The defendant pleaded guilty and “spent nearly three years in prison,” which Pelletier considered a “just result” at the time.

Translation: As the prosecutor on a relatively small fraud case, Pelletier negotiated a plea deal and sought a three-year prison sentence for a defendant of limited means. Assuming this person didn’t have a record, that’s an incredibly long sentence for that size fraud.

Example 2: A wealthy private equity investor committed alleged tax fraud of about $43 million. He negotiated a non-prosecution agreement with DOJ with the help of a cadre of high-priced lawyers. He was not charged with a crime.

Translation: The investor likely had valid defense(s), which led DOJ to agree not to charge him criminally. DOJ recognized the weakness of its case—no doubt following vigorous arguments by the person’s expensive legal team—and voluntarily agreed not to prosecute him.

Pelletier goes on to argue that there has been a “marked deterioration of [DOJ’s] ability to competently attack elite financial fraud” and proposes that President Biden appoint a “white-collar-crime czar to head a sustained national effort to address elite fraud.”

According to Pelletier, the way to fix the gap in treatment between the rich and the poor is for the criminal justice system to crack down on rich white-collar criminal defendants.

That sounds good in theory—and, hey, it would be great for business around here.

This is where I think Pelletier gets the solution exactly backwards. Rather than prosecuting rich people as harshly as they prosecute poor people, prosecutors could instead treat poor people as leniently as he believes* the system treats rich people. Line prosecutors have that power right now. We don’t need a white-collar crime czar or a task force to do that.

Two small parts of the piece reveal his mindset.

He says he “witnessed first hand precisely how unjust” the criminal system is. He didn’t just “witness” it; he wasn’t a passive bystander. He participated first hand in an unjust system.

This is demonstrated perfectly by his 1999 tax return preparer example. In reference to that case, Pelletier writes that “[f]or the poor, even the merest transgression can lead to ruined lives.” His use of the passive tense is classic law-enforcement grammar (“shots were fired.”). If he were being honest, Pelletier would have written, “As a prosecutor, I ruined a poor person’s life for the merest transgression.”

The fact is, Pelletier did not have to charge the tax preparer with offenses that led to the three-year sentence. He didn’t have to ask the court for a prison term. He could have offered a non-prosecution agreement instead, right? Perhaps there was a civil resolution rather than a criminal one?

I have no doubt that Pelletier is genuinely concerned about the disparate treatment of the rich and the poor. It’s gratifying to see a former high-ranking DOJ official acknowledge the flaws in the system.

But his solution (perhaps unintentionally) reveals just how deep a prosecutor’s mindset is. His solution to unfairness in the criminal justice system is more punishment or harsher punishment. I’ve love to see a former prosecutor think outside the box and suggest less punishment across the board even for those without the funds to gather a high-priced law firm to defend against the charges.

The current DOJ absolutely should investigate serious corporate crime and prosecute it vigorously where warranted. There’s no doubt the prior administration fell down on the job for the last few years.

But perhaps we should also think about reforming a criminal justice system that often seems hell-bent on “ruining lives” for every minor “transgression.” Line prosecutors can create very real change by treating poor defendants as they do rich ones. Leniency is not weakness.

* I’m far from convinced that all wealthy people are treated leniently in the criminal justice.

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