Discretion in Relation/Emphasis to White Research Paper

Download this Research Paper in word format (.doc)

Note: Sample below may appear distorted but all corresponding word document files contain proper formatting

Excerpt from Research Paper:

This is one of the reasons that the United States Supreme Court has noted the difficulty in distinguishing common crime from the "gray zone of socially acceptable and economically justifiable business conduct.

Prosecutors are not eager to 'overcriminalize' and the practice of too readily extending criminal law to areas of which it is not suited is known as "overcriminalization."

For these reasons, the statues of white-collar crimes are broad and fuzzy. And the task, therefore, of defining crime and penalties falls firstly to the prosecutors and then to the court. In the 1980s, the prosecutors read the white collar statutes broadly and the courts were expected to set the perimeters of criminal labiality. There is wide scope however of criminal liability under these white collar statutes.

Is this fair?

For decades, academicians have been calling for change in this, what they see, as unjust and partisan system. To them, the system contains at least two wrongs: Firstly, it places too much power in the hands of prosecutors. Secondly, the system invests prosecutors with the ability to accord differential treatment based upon partisan allegiances. The issues, back and forth about the fairness or unfairness of the discretionary system are febrile and ongoing. They are covered in the following two sections.

6. Arguments in favor of discretion

White-collar crime is seen as a "malum prohibitum," which means that the public makes a distinction between that and common crime and, in order to maintain the public perception of the severity of common crime, supporters of prosecutorial discretion argue that this '"malum prohibitum" perception should be retained. Prosecutorial discretion has been an entrenched and accepted part of the criminal justice system ever since the beginning and will likely remain so in the future.

Most supporters also see the system as generally fair. Sometimes, there is an 'overzealous' prosecutor but he is held in check by the controlling judge who words the statutory language of the white-collar case in such a way that the underlying 'innocence' of the moral intention comes through.

Finally, supporters of the system laud it for its flexibility. Frequently, perpetrators of white-collar crime are unintentionally committing these crimes. They belong in the civil arena, rather than as deliberate offense against private others and their possession; neither are they meant to deliberately hurt others. Prosecutors are, generally, fair and unbiased. When they tend to be overzealous, a judge corrects them. With this being the case, therefore, prosecutorial discretion has always been the criminal system. Supporters of prosecutorial discretion, therefore, say that there is no need to change it. Prosecutors go to great pains to ensure rational and unbiased judgment. Lapses hardly occur. When they do occur, overarching judges are carful to remand them.

7. Arguments against the exercise of discretion

Whilst some see the prosecutorial discretion as a blessing and as an inalterable part of the American criminal system, others see it as a curse. Not only does it place too much power in the hands of prosecutors but it can also lead to partisan and biased judgments.

One such case that made headlines was the decision by the U.S. Attorney's Office for the Central District of California against prosecuting Lance Armstrong. Admittedly, they had good reason: recent federal prosecutions that involved drug use by celebrities expended a great deal of money with poor or no results. If Armstrong did dope, his doping was not a federal crime. Finally -- and this is where it turned controversial -- Armstrong is enormously popular with a great deal of money. The prosecutors (some said) were swayed by this force (Prosecutorial Discretion Is the Better Part of Valor (Feb 8, 2012)).

There is no reason -- critics argue -- that white-collar offenders should be treated more deferentially than 'common' criminals. They hurt people as badly, if not more so, than common criminals do, and to differentiate on the basis of class and status alone is not only not fair but also not democratic.

Discretion, furthermore, also eventuates in inconsistent sentences which only lead to breakdown in respect of the law and to potential perpetration of further white-collar crimes. Deterrence can only be assured by a consistent set of sentences that shows no favoritism to any one individual or organization and where the sentence does not lie on the particular individual engineering it. Morally credible enforcement procedures, accordingly, would not only serve as greater deterrence but would also ascertain that individuals have a greater respect for the law and more instantly become law-abiding citizens.

8. Limits on discretion

White collar crimes are an often "malum prohibitum" crime which means that they do not appear as common crimes to the public perception although it is a crime to engage in such conduct. Fallone (2012) argues that the person who overlooks the fact that it is a "malum prohibitum" crime and deliberately engages in such a crime should receive different treatment (and the criminal status) than one who treats it as a "malum prohibitum" offense. Such a person is morally culpable and should be prosecuted since he deliberately engaged in such an offense. On the other hand, the one who unintentionally committed such a crime should receive a less sever penalty than the other although some penalty is in order due to the fact that "ignorance of the law is no defense."

A prosecutor's charging decisions should generally reflect these principles. Sometimes, there is an 'overzealous' prosecutor but he is held in check by the controlling judge who words the statutory language of the white-collar case in such a way that the underlying 'innocence' of the moral intention comes through. Such was the case in Justice Thomas' opinion for the Supreme Court in Staples v. United States, or in the Supreme Court's conduct in Liparota v. United States decision.

Moohr (nd) thinks that the system should revolve around an inquisitorial approach where a jury would act as check on, and investigate the prosecutor's decision. However, there seems to be little sign that the system will be changed -- at least not in the near future.

13. Conclusion

Issues of discretionary freedom with white collar crime are febrile and ongoing. On the one hand, critics complain that prosecutors have too much freedom in deciding whether or not white collar crime is criminal and in deciding how to penalize it. On the other hand, supporters of the system say that the system is mostly fair and that it is distinguished from criminal activities in that it deals with civil content. In this way, white-collar crime cannot be judged as a criminal matter and must be accorded different conditions. Critics, however, dispute that saying that there is no reason why white-collar crime which is just as severe as common crime, if not more so, should be treated in a more deferential way.

Suggestions such as inquisitorial trials (with jury assessing prosecutorial decisions) have been suggested, but none have been taken seriously. Fallene (2012) thinks that the issue will not be so readily solved since prosecutorial discretion has been an entrenched and accepted part of the criminal justice system ever since the beginning and will likely remain so in the future. This is mostly due to the fact that white collar crimes are often "malum prohibitum" crimes which mean that they do not appear as common crimes to the public perception although it is a crime to engage in such conduct. They are therefore open to broad treatment and interpretation. The best one can do is monitor prosecutorial decisions with presiding judge, and this is what is being done at the moment.


Bureau of Justice Statistics, United States Department of Justice, Dictionary of Criminal Justice Data Terminology 215, 1981

Justia. U.S. Supreme Court "Braswell v. United States, 487 U.S. 99, 115," 1988


Fallone, B (2012) "Prosecutorial Discretion in the John Doe Investigation" Marq. Univ. Law School blog. Web.




Strader, JK "The Judicial Politics of White Collar Crime," Hastings L. Rev. 1199, 1204 -- 14 1999.)

"Prosecutorial Discretion Is the Better Part of Valor: Lance Armstrong; FCPA Gabon Sting" (Feb 8, 2012)




Cite This Research Paper:

"Discretion In Relation Emphasis To White" (2012, November 15) Retrieved December 7, 2016, from http://www.paperdue.com/essay/discretion-in-relation-emphasis-to-white-76464

"Discretion In Relation Emphasis To White" 15 November 2012. Web.7 December. 2016. <http://www.paperdue.com/essay/discretion-in-relation-emphasis-to-white-76464>

"Discretion In Relation Emphasis To White", 15 November 2012, Accessed.7 December. 2016, http://www.paperdue.com/essay/discretion-in-relation-emphasis-to-white-76464

Other Documents Pertaining To This Topic

  • Gender Relations and the Experience of African American

    Gender Relations and the Experience of African-American Women under Slavery Race has grown to be a serious matter in politics and social life. Not only it is an issue in the United States of America but many other parts of the world have faced and are facing this matter as a crucial one. To classify people based on their complexion is alright but dividing them into clear separate races is not.

  • Public Administration Core Competency Final

    This is what is affectionately known as cutting through the red tape. Politics and Administration 2. Whether or not administration should be separate from politics is one of the abiding controversies of our field. Describe Woodrow Wilson's and Frank Goodnow's positions (and why they argue what they do) on the matter. Then compare and contrast their ideas with those of Luther Gulick and Leonard White. How does Jane Addams conceive the

  • Course Reflection Women Studies

    From the police officers' perspective, it did not matter whether I was a member of the upper class, educated, affluent or even an important person in the community. The only identification that mattered was my skin color. On that day, I encountered all three types of oppression. The state institution on my group and I oppressed us by unlawfully labeling us. Interpersonal oppression because I started to hate the

  • Police Administration Structures Processes and Behaviors 8th

    Police Administration; Structures, Processes, And Behaviors 8th Edition The Evolution of Police Administration Over the centuries, police administration has evolved in several important respects including how police have been organized and what they considered their core strategy for providing value to the communities they serve (Perry, 2001). It is argued that the present police work is not very different from previous police work performed by the London Bobbies in 1829 and the

  • Patriot Act Understanding the Origins and Impact

    Patriot Act Understanding the Origins and Impact of the Patriot Act: From September 11th to the Modern Day National security is one of the most essential concerns for any society or state, and arguably the most essential concern for any nation in the modern era that is marked both by non-government-affiliated aggressors as well as many disputed borders and territories that lead to intergovernmental conflicts. If national security is breached in any

  • Mandatory Sentencing Public Policy Crime and Criminal

    Mandatory Sentencing Public policy, crime, and criminal justice Mandatory Sentencing: Case Study Critique The prime grounds of mandatory sentencing laws are utilitarian. The laws come with long prison sentences for recidivists, drug dealers and isolation of violent criminals from the community aiming at preventing them from committing additional crimes outside the prison walls. In addition, the design of mandatory sentencing aim at deterring and portraying a harsh reflection to potential offenders of the

  • Promising Phenomenon That Lends Itself

    66). Furthermore, social software will only increase in importance in helping organizations maintain and manage their domains of knowledge and information. When networks are enabled and flourish, their value to all users and to the organization increases as well. That increase in value is typically nonlinear, where some additions yield more than proportionate values to the organization (McCluskey and Korobow, 2009). Some of the key characteristics of social software applications

Read Full Research Paper
Copyright 2016 . All Rights Reserved