Thursday, August 18, 2016


A Federal Judge, at a sentencing hearing in US District Court in New Jersey, made a number of unusual comments, directed to what he called a ridiculous pattern, of prosecutors zealously bringing corruption cases, and then often seeking sentences which did not include prison time, for defendants who enter a plea of guilty, saving the Government the cost of a trial, and increasing conviction statistics.

The judge stated that the such conduct makes no sense in the context of effective law enforcement. He further stated that individuals whose conduct  defrauds the government, then jail time is the correct punishment. His honor noted that the US Attorney's Office in Newark filed Section 5K1.1 motions, which is a request for the Court to depart below the Guidelines, some of which require mandatory sentencing, in pronouncing a sentence.

While cooperating defendants, who enter a guilty plea, and provide Substantial Assistance, that results in additional indictments, or the recovery of assets for the US Government, often receive a lighter sentence than the Guidelines propose, the thrust of the judge's argument was that the US Attorney was really seeking a high percentage of convictions, and that individuals who participate in corruption acts should receive a greater sentence than simply probation, and that the public is not served by such minimal sentences.

From a strictly compliance viewpoint, a sentence of probation results in the defendant's continued presence in the community, where his conviction may not be generally known, as non-financial companies do not always check criminal records, when making a decision with whom to do business, and especially with whom to continue to do business. A search of the US Bureau of Prisons website, which is freely available, will not turn up the offender, as his case goes to the US Probation Office. Many compliance officers do not search PACER, which is a pay website, and therefore, his conviction may not be known.

When it comes to companies in other states or countries, it is doubtful that those businesses will know that they are conducting transactions with an individual with a corruption conviction, and who may have committed even more serious acts, but evaded punishment, through a guilty plea. As the result, the individual, who did not suffer any jail or prison time, and failed to understand the consequences of his actions, may reoffend later, and involve more victims.

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