STEALING FIRE – WHITE COLLAR CRIME NETS 11 YEARS FOR THE KING OF THE HEDGE FUNDS

Professor Douglas Berman writes about the futility of long prison sentences for white collar defendants involving fraud and insider trading. At first glance he persuasively argues that for white collar criminals ‘shaming sanctions’ could be a more effective deterrent than jail. 
Isn’t the Professor really suggesting that rich men, men of culture perhaps not unlike the Professor himself, should not have to live by the rules that the rest of us must follow and if caught need not suffer the consequences the rest of us would face. 
No, the real problem with sentencing in America is in too much prosecutorial power in charging decisions, too little discretion left in the hands of Judges, and the harsh sentences for victimless crimes such as routine 25 year minimum mandatory sentences for drugs. Isn’t eleven years for an assault on the free market system and a take of nearly 54 million dollars about right? Or as one observer noted, “No matter the crime, if the rewards are great enough, people will ignore the risk of getting caught.”
Would a sign saying, “I am an INSIDER TRADING THIEF,” hung around the Defendant’s neck effectively persuade others contemplating similar crimes not to corrupt capitalism?
Nor does the Professor note that the NYTs reported that Judge Howell did reduce the guidelines sentence based on personal factors including his charity work in the community, his age and his advanced diabetes which the Court noted would make his jail time harsher than time served by a typical inmate. 
And the Judge makes some telling points that show shame to be a weak cure for this disease: Insider trading is an assault on the free markets,” said Judge Holwell, who also imposed a $10 million fine and ordered Mr. Rajaratnam to forfeit $53.8 million in ill-gotten profits, His crimes reflect a virus in our business culture that needs to be eradicated.” 
Sentenced to 11 Insider Case – NYTimes.com
Ten top American fraudsters – Telegraph
Here are two paragraph excerpts from the Professor’s Time article.   What Will Deter Insider Trading? | TIME Ideas | TIME.com
 Raj Rajaratnam, who was convicted of masterminding the biggest hedge-fund insider trading scheme in American history, federal prosecutors urged U.S. District Judge Richard Holwell to give him at least 20 years in prison “to send a clear and unequivocal message that illegal insider trading will not be tolerated.” Judge Holwell imposed 11 years — a relatively long sentence compared to insider-trading-Hall-of-Famers such as Ivan Boesky, who served only two years in federal prison. 


A variety of shaming sanctions were widely used during the 18th Century in America, in part because prisons did not then exist and in part because shaming was viewed as a humane alternative to the death penalty, banishment or brutal physical punishments. More recently, academics have debated the potential virtues and vices of modern shaming sanctions — often after a judge has ordered a shoplifter to wear publicly a sign saying “I am a thief” or a police department has published drunk drivers’ names on billboards. Because we have never tried to make white-collar offenders “pay” for their crimes through extensive and prominent use of shaming sanctions, I cannot say with confidence that this alternative form of punishment will be more effective. But because deterrence research suggests very long prison terms for white-collar offenders may greatly extend their suffering (and taxpayer-funded imprisonment costs) with no corresponding benefit to society, I think it is time to start considering creative alternatives.
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida
White Collar Crime Criminal Defense Attorney in St. Petersburg, Pinellas, Clearwater, FL
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Raj Rajaratnam sentenced to 11 years in prison for insider trading – Telegraph
Raj Rajaratnam; insider trading; sentence; hedge funds; federal prison – Los Angeles Times
FBI — Hedge Fund Founder Raj Rajaratnam Sentenced in Manhattan Federal Court to 11 Years in Prison for Insider Trading Crimes
Prison Time for Inside Trading Is Climbing – WSJ.com
Sentencing Law and Policy: Purposes of Punishment and Sentencing

Stealing fire isn’t singe free — Prometheus having his liver eaten by an eagle. Painting byJacob Jordaens, c. 1640

HERE’S YOUR CHOICE: FIVE YEARS IN JAIL OR SUBMIT YOURSELF TO A PUBLIC FLOGGING

The very highbrow Chronicle of Higher Education reluctantly endorses flogging. Should you? 


Which would you rather do, five years in prison or submit yourself to a flogging? The author, Peter Moskos, while conversing over a little too much red wine in New Orleans, finds an interesting idea as well as the title for his new book on crime and punishment in America.

Here is an excerpt from Peter Moskos’ article from the Chronicle of Higher Education (In Defense of Flogging – The Chronicle Review – The Chronicle of Higher Education

And yes, if you’d like to read an entire book about his thesis, the title of his new book, if you’ve not yet guessed, is of course,  In Defense of Flogging. I’ll pour some more of that red wine as you read.

Excerpt: For most of the past two centuries, at least in so-called civilized societies, the ideal of punishment has been replaced by the hope of rehabilitation. The American penitentiary system was invented to replace punishment with “cure.” Prisons were built around the noble ideas of rehabilitation. 
If you were sentenced to five years in prison but had the option of receiving lashes instead, what would you choose? You would probably pick flogging. Wouldn’t we all?
I propose we give convicts the choice of the lash at the rate of two lashes per year of incarceration. One cannot reasonably argue that merely offering this choice is somehow cruel, especially when the status quo of incarceration remains an option. Prison means losing a part of your life and everything you care for. Compared with this, flogging is just a few very painful strokes on the backside. And it’s over in a few minutes. Often, and often very quickly, those who said flogging is too cruel to even consider suddenly say that flogging isn’t cruel enough. 
My defense of flogging—whipping, caning, lashing, call it what you will—is meant to be provocative, but only because something extreme is needed to shatter the status quo. We are in denial about the brutality of the uniquely American invention of mass incarceration. 
America now has more prisoners, 2.3 million, than any other country in the world. Ever. Our rate of incarceration is roughly seven times that of Canada or any Western European country. Stalin, at the height of the Soviet gulag, had fewer prisoners than America does now (although admittedly the chances of living through American incarceration are quite a bit higher). We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.
All this because we’ve taken a traditional punishment such as flogging out of the arsenal. We’ve run out of choices, choices desperately needed if we’re to have any hope of reducing our incarceration rate by 85 percent, back in line with the rest of free world, back to a level we used to have. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?