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1980
The Differential Sentencing of White-Collar Offenders in Ten The Differential Sentencing of White-Collar Offenders in Ten
Federal District Courts Federal District Courts
Ilene Nagel Bernstein
Indiana University School of Law
John Hagan
University of Wisconsin - Madison
Celesta Albonetti
Indiana University - Bloomington
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Part of the Criminal Law Commons, and the Criminology and Criminal Justice Commons
Recommended Citation Recommended Citation
Bernstein, Ilene Nagel; Hagan, John; and Albonetti, Celesta, "The Differential Sentencing of White-Collar
Offenders in Ten Federal District Courts" (1980).
Articles by Maurer Faculty
. 2081.
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THE DIFFERENTIAL SENTENCING OF WHITE-COLLAR OFFENDERS
IN TEN FEDERAL DISTRICT COURTS*
JOHN HAGAN ILENE H. NAGEL (BERNSTEIN)
University of Wisconsin-Madison Indiana University
University of Toronto
CELESTA ALBONETTI
Indiana University
American Sociological Review 1980, Vol. 45 (October):802-820
While sociologists have long debated the relationship between the status characteristics of
criminal offenders and the sentences they receive, they have done so with data sets drawn from
state courts whose prosecutorial resources are focused almost entirely on low status
defendants. Qualitative and quantitative data analyzed in this paper are drawn from ten federal
district courts whose statutes and resources provide greater potential for the prosecution of the
white-collar crimes of higher status offenders. Three questions are addressed: (1) Are there
substantial jurisdictional differences in the prosecution of white-collar cases? if so, (2) Are there
corresponding jurisdictional differences in the sentencing of white-collar cases? and (3) Within
jurisdictions, are there further differences in the factors that influence sentencing decisions in
white-collar as compared to other kinds of cases? The data are analyzed from a perspective that
emphasizes organizational considerations: we conceptualize the criminal justice process as a
loosely coupled system and the use of prosecutorial resources as proactive and reactive. We
argue that the expanded prosecution of white-collar persons for their white-collar crimes
requires a proactive prosecutorial policy and a tightening of the coupling between plea
negotiations and sentencing decisions in the prosecutorial and judicial subsystems. Our
quantitative analysis reveals that one district follows a uniquely proactive pattern. As expected,
this proactive district also exhibits a unique leniency in the sentencing of college educated
white-collar criminals that is related to earlier plea and charging decisions. A rather different
and unanticipated pattern of leniency is found in this district for less educated white-collar
offenders. A conclusion of this study is that there may be an inverse relationship between the
volume of white-collar prosecutions and the severity with which they are sentenced.
The existence of systematic links be-
tween the status characteristics of crimi-
nal offenders and the sentences they re-
ceive has been debated for some time (see
Hagan, 1974). This debate is grounded in
issues of theory and policy. For example,
Chiricos and Waldo (1975) regard a re-
lationship between class position and
sentencing as crucial to one prominent
version (Chambliss and Seidman, 1971) of
a conflict theory of crime, while the ab-
sence of such a relationship is usually
deemed essential to notions of "equality
before the law." It therefore is not sur-
prising that this type of debate has gener-
ated a large volume of research (see Net-
tier, 1979:40-6). What is surprising is the
inconclusiveness of the findings that flow
from this work.
The problem is not simply that these
findings are inconsistent, although they
are that. For all the studies that find little
(e.g., Bernstein et al., 1977) or no (e.g.,
Chiricos and Waldo, 1975) relationship
between status characteristics and sen-
tencing, there are still those that find this
relationship to be substantial (e.g.,
Swigert and Farrell, 1977; Lizotte, 1978).
However, the larger issue is that the data
sets on which these studies are based are
widely thought to be inadequate. Specifi-
cally, critics (e.g., Greenberg, 1977; Hop-
kins, 1977; Reasons, 1977) note that the
samples considered in these studies con-
sist almost entirely of low status defend-
ants, making this research mainly a matter
of within- rather than between-class
comparisons. Thus, while (to date) re-
search of this type has focused on the
sentencing of "traditional" or "common"
* Direct all correspondence to: John Hagan; De-
partment of Sociology; Erindale College; University
of Toronto; Mississauga, Ontario L5L-1C6.
Research reported in this paper was funded by the
Crime and Delinquency section of the National In-
stitute of Mental Health. The authors wish to thank
the anonymous reviewers of this manuscript for their
helpful comments.
802
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DIFFERENTIAL SENTENCING OF WHITE-COLLAR OFFENDERS 803
crimes (e.g., murder, robbery, larceny,
etc.), Hopkins (1977:177) points out that
"The illegal activities of the middle and
upper classes are typically such things as
income tax evasion and, in the case of
businessmen, price fixing, violation of
pollution laws and misrepresentation in
advertising."
Three problems account for the failure
of recent research to consider the latter
kinds of crimes, which usually are desig-
nated vaguely as "white-collar crimes."
First, there is an uncertainty about what,
and who, to study. The difficulty is that
not all white-collar crimes (e.g., income
tax violations) are committed by white-
collar persons, and not all white-collar
persons commit white-collar crimes (e.g.,
the crimes of Patty Hearst). We respond
to this problem in this paper by cross-
classifying indicators of the status of the
offender and the offense. This allows us to
compare the prosecution and sentencing
of the white-collar crimes of white-collar
persons with the prosecution and sen-
tencing of other offender-offense combi-
nations (see later pages, herein, for further
elaboration of this point). Second, the
former kinds of white-collar crimes are
prosecuted with their greatest frequency
in the American federal courts. To date,
most sociological research on sentencing
has been done in the state courts. Third,
much of the white-collar crime of white-
collar persons is 'beyond incrimination"
(Kennedy, 1970). That is, much of this
white-collar "indiscretion" is handled in
the civil courts, or not dealt with at all.
However, this situation shows signs of
change.
Some U.S. Attorney offices recently
have begun to take increased initiative in
the prosecution of white-collar persons
and their white-collar crimes. The quan-
titative data analyzed in this paper consist
of cases prosecuted and sentenced over a
several-year period in ten federal district
courts, including one of the first U.S. At-
torney offices in this country reputed to
have made the prosecution of white-collar
cases a high priority; qualitative data, as
well, were gathered through observations
and interviews in these courts. The latter
data are used first to ground the following
discussion of "white-collar justice."
THE SOCIAL ORGANIZATION OF
WHITE-COLLAR JUSTICE
To understand the sanctioning of
white-collar persons and their white-collar
crimes we must consider the system in
which this occurs. In this section, we de-
velop a perspective for viewing the opera-
tions of this system. The perspective we
offer is derived from the work of others
and from the interviews and observations
gathered in site visits to the ten district
courts. The districts and their principal
cities are Eastern and Southern New York
(Brooklyn and Manhattan), Northern Il-
linois (Chicago), Eastern Pennsylvania
(Philadelphia), Maryland (Baltimore),
Northern Texas (Dallas), Western
Missouri (Kansas City), Northern Georgia
(Atlanta), Central California (Los
Angeles), and Eastern Michigan (Detroit).
During the site visits we observed ap-
proximately 200 hours of court proceed-
ings and conducted approximately 600
hours of interviews with the following
court personnel: 9 Chief Judges and 42
Presiding Judges, 8 United States Attor-
neys and 48 Assistant United States At-
torneys, 14 Probation Officers, 15 Admin-
istrators of Pre-Trial Services Agencies,
31 Magistrates, and 10 Chiefs of Public
Defender Offices.'
Reiss (1971; 1974) conceptualizes the
criminal justice system as a loosely ar-
ticulated operating network of input-
output relationships among a series of
subsystems; a set of relationships that we
1 These interviews were conducted over a ten-
week period, with one week spent in each of the ten
districts. The ten jurisdictions comprise a purposive
sample selected by the Supreme Court (under
provisions of the Speedy Trial Act; see fn. 4) and
intended to maximize the representation of major
metropolitan and geographic areas across the United
States. The first two authors of this paper conducted
the interviews together, using a set of structured,
open-ended interview schedules that are available on
request. Our purpose was to interview a cross-
section of court personnel across the ten districts.
Unedited excerpts from these interviews are quoted
in this article. One Chief Judge refused to be inter-
viewed and two U.S. Attorneys were not available
for interviews. However, the First Assistant to each
of the latter U.S. Attorneys was interviewed and our
coverage otherwise was quite comprehensive. These
qualitative data were generated to correspond to the
quantitative data discussed later in this paper.
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804 AMERICAN SOCIOLOGICAL REVIEW
will refer to as a "loosely coupled sys-
tem" (Hagan et al., 1979; see also Meyer
and Rowan, 1977). Discretion is dispersed
throughout this system, and mechanisms
for systematizing this discretion appear to
be the exception as much as the rule.
Thus, Gibbs (1978: 105) observes that ". . .
the system actually appears to be an
ungoverned mishmash," and Eisenstein
and Jacob (1977:37) note that even "the
judge does not rule or govern; at most, he
manages, and often he is managed by
others." Reiss (1971:120) goes on to sug-
gest that "the major means of control
among the subsystems is internal to each"
with the significant consequence that
"each subsystem creates its own system
of justice." This situation becomes prob-
lematic when the attempt is made in such
a system to establish or shift policies and
priorities. Indeed, one of the fascinating
features of loosely coupled systems is
their ability to circumvent such changes
(see Meyer and Rowan, 1977).
Yet important changes in policies and
priorities sometimes do occur, with sys-
temwide repercussions. Within the crimi-
nal justice system, such changes are often
implemented through the prosecutorial
subsystem. Reiss (1974:690) indicates why
and how:
By legal authority and by practice, prose-
cutors have the greatest discretion in the
formally organized criminal justice network.
... The way that prosecutors exercise dis-
cretion over input and output varies consid-
erably among jurisdictions. This variation is
due partly to the organized forms of discre-
tion available to a prosecutor in a given
jurisdiction and partly to historical practice
within that office. The discretionary deci-
sions of prosecutors whether or not to file
information can exercise substantial control
over input into the system, while the quan-
tity and quality of output are determined
mainly by their decisions to nol pros or to
plea bargain.
Drawing from Reiss (1971), Black (1973)
and our own interviews, we suggest that
this prosecutorial power can be exercised
in two principal ways.
On the one hand, prosecutors can fol-
low a reactive policy of law enforcement.
Following this strategy, prosecutors can
respond to police initiatives in the same
way in which the police do to citizen com-
plaints. That is, prosecutors can simply
respond to what the police bring to their
attention. Indeed, the influx of cases, the
absence of ready avenues of diversion,
and the scarcity of resources is such that
most state courts can do little but react,
and slowly at that. These are "courts of
last resort." Many federal prosecutors
also are reactive. Their assumption is
often that court resources are most effi-
ciently organized to satisfy the demands
of enforcement agencies. This assumption
is reflected in the explanation given us by
a U.S. Attorney for his reluctance to pur-
sue one type of white-collar crime.
It would be nice to investigate, let's say,
public corruption. "Okay, FBI, I want you
to go out and develop snitches in all the
HEW places where they might be taking
bribes" . . . but God knows how much time
[that would take] and we don't have the re-
sources to do that. If I had some prosecutors
or some agents to whom I could say, "Okay,
I don't mind you wasting a year investigating
this because we want it looked into," then I
could see doing that. But if you don't have
the resources to do it, I just don't feel you
are using your resources right.
This reactive view is summarized in a
quote from .another U.S. Attorney inter-
view: "In my opinion, any time you deny
an agency the right to enforce its federal
laws, you are not doing the job you are put
here for."
Other federal prosecutors find, in their
roles, sources of flexibility that allow the
development of proactive policies. First,
federal prosecutors have jurisdiction over
a broad range of white-collar offenses.
Second, federal prosecutors can decline
cases or defer them to state courts, re-
serving resources for cases they assign
higher priority. Third, the ratio of person-
nel to cases is usually more favorable in
federal than in state courts. Fourth, fed-
eral prosecutors often have investigatory
resources-particularly, federal agencies
like the Federal Bureau of Investigation,
the Postal Service and the Internal Reve-
nue Service-that the state courts do not.
Consequently, U.S. Attorney offices in
several large jurisdictions allocate their
resources to proactively initiate and en-
courage the investigation and prosecution
of high priority cases. Thus, one U.S.
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DIFFERENTIAL SENTENCING OF WHITE-COLLAR OFFENDERS 805
Attorney interviewed noted that "In
terms of the decision-making process of
how and what cases will be handled and
what will be done, a lot [of decisions] are
being made here and not in the agency."
One way this is done is as follows.
The U.S. Attorney's office can investigate
cases in the grand jury, where it generates
information. In other words, we can initiate
an investigation. What we do often is we
initiate investigations and then bring in the
agency that will have jurisdiction in that area
and be working with that agency in terms of
developing the grand jury investigation; but
we are not limited to only acting on cases
that come into the office after an agency has
done an investigation. We ourselves can ini-
tiate the investigation, through the grand
jury.
This proactive attitude is summarized in
the observation of another U.S. Attorney
that: "We don't sit back and wait for
cases to walk in the door. We go out and
make them."
However, use of grand juries is not suf-
ficient to build important white-collar
cases in a proactive fashion. Information
and evidence are needed to begin building
these cases. While in other prosecutions
such information frequently comes from
victims and witnesses, the white-collar
crimes of white-collar persons usually are
different: the complexity and diffuseness
of the victimizations reduce the visibility
of these crimes and, therefore, the likeli-
hood of obtaining evidence from nonim-
plicated persons.2 A U.S. Attorney ex-
plains the problem this way:
... in these sort of activities, the only
people with the information that you are
going to have to convict are the participants.
It is not like a bank robbery where innocent
people watch and see and identify. The only
way you can get these kinds of criminals is
through information supplied by partici-
pants. You have to peel off the layers . ..
and that is difficult. That is a burden that is
tougher than the burden prosecutors in the
past had to deal with.
The questions that follow are What is
the exact nature of this burden? and Why
is this burden so difficult to bear? Our
interviews suggest that the nature of the
burden is negotiation: the development of
cooperative witnesses through plea
negotiation. The process- and problems in-
volved are suggested in another segment
of the above interview.
The negotiation proceeds within the confines
of reality. That is the advantage I think good
defense counsel has. . . . He knows and can
tell his client what is likely to happen, and
how likely it is to happen. If we've got a
weak case, we've got a weak hand. If you've
got a really strong case, you hold four aces
on the top and he doesn't have any choice.
Well, he does have a choice. Some people
just go down. They take their lumps and they
don't want to talk.... One of the last chips
we have is that we can say not only are we
going to convict you and send you to prison
and you aren't going to get anything. After
that is all done, then we will put you in the
grand jury and we will get the information
anyway and you won't get any credit for it.
Indeed at sentencing we will stand up and
make a point of the fact that you refused to
cooperate and that will be held against you
and you will get even more time.
The proactive prosecution of white-
collar persons and their white-collar
crimes, therefore, comes down to the
problem of how to get the leverage re-
quired to "turn witnesses," and the key to
obtaining this leverage is to forge a con-
nection between plea negotiations and
concessions and coercion in sentencing.
In other words, prosecutors must over-
come the tendency toward loose coupling
between most parts of the criminal justice
system, establishing instead a direct con-
nection between plea negotiations and
sentencing decisions in white-collar cases.
This can be accomplished in at least two
ways: by carefully managing the severity
of the charges in these cases, so that
judges can use statutory guidelines in ar-
riving at lenient sentences, and by getting
judges to reward negotiated pleas directly.
That such sentencing decisions are gener-
ated is suggested by the following obser-
vation of an Assistant U.S. Attorney in
charge of a subsection responsible for the
prosecution of official corruption in the
district best known in our sample for its
2 Beyond this, even when such evidence might be
obtained through record searches, accounting pro-
cedures, and the analysis of documents, the amounts
of material and the methods of investigation are so
costly in man-hours and resources, both to develop
and to present in court, that such efforts rarely are
undertaken.
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