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Ellen S. Podgor and Jerold H. Israel, White Collar Crime in a Nutshell (4th ed., West Academic Publishing, 2009)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Cybercrime: Discretionary Jurisdiction, 47 U. Louisville L. Rev. 727 (2009)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Educating Compliance, 46 Am. Crim. L. Rev. 1523 (2009)Clicking on the button will copy the full recommended citation.
The most effective way to achieve corporate compliance is to have individuals comply with the law. The reality, however, is that punishing misconduct, a reactive model, is the common methodology used to attain future legal compliance. Focusing more resources on the front end and using a pro-active model to achieve compliance would keep the corporate structure whole and yet also provide a sound basis for eradicating corporate criminality. This Essay proposes that an education model be implemented, with the government more actively participating in promoting compliance with the law.
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Ellen S. Podgor, Race-ing Prosecutors’ Ethics Codes, 44 Harv. C.R.-C.L. L. Rev. 461 (2009)Clicking on the button will copy the full recommended citation.
This Essay examines prosecutorial discretion, using the decisions made in the Jena Six incident as its example for change. Two crucial considerations, omitted in this decision-making process, are offered here. First is the importance of examining cases globally as opposed to making prosecutorial decisions using a one-dimensional process. Looking only at whether specific facts support a particular charge fails to account for promoting justice in situations that might be threaded to a particular theme. Merely matching facts to elements of a statute fails to provide a thoughtful recognition of what is in fact a "just" resolution. Second is the need to be vocal when an injustice warrants correction. The affirmative duty of a prosecutor to promote justice has both symbolic and practical implications.
This Essay examines the discretionary decision-making process from the perspective of legal and ethical mandates that are intended to guide prosecutors in their choices. In looking at the hortatory guidance provided to prosecutors, it considers the role of compassion and how compassion can be used to ensure fairness in the process. While personalities can clearly influence a charging decision, it is important to make certain that the decisions are not made as a one-dimensional process. Rather, it is necessary that the decision-making process examines all factors and circumstances in order to make certain that the prosecutor acts as a true "minister of justice."
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Ellen S. Podgor et al., White Collar Crime: Law And Practice (3rd ed., West Academic Publishing, 2009)Clicking on the button will copy the full recommended citation.
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Candace Zierdt and Ellen S. Podgor, Back Against the Wall: Corporate Deferred Prosecution Through the Lens of Contract Policing, 23 ABA Criminal Justice Magazine 34 (2008)Clicking on the button will copy the full recommended citation.
This article examines deferred and non-prosecution agreements entered into between corporations and the Department of Justice (DOJ) through the lens of contract policing theory. It adds a new dimension to the contractual law now applicable to plea bargains and proffer agreements by suggesting key provisions that should be prohibited in deferred prosecution agreements. Three provisions common to many deferred prosecution agreements, or used by the government as leverage to secure a deferred prosecution agreement, are of particular interest here. These are: (1) the requirement of a corporation to waive its attorney-client privilege; (2) the determination of a breach of the agreement being within the sole province of the government; and (3) the provision that corporations not abide by previously negotiated contract terms that allow the corporation to pay the attorney fees of corporate employees. Specifically, this article examines the viability of specific provisions within these agreements when matched up against contract policing principles such as duress and unconscionability. This article concludes that corporations are deprived of basic contract rights as a result of the over-powering prosecutorial power used in reaching these agreements.
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Ellen S. Podgor et al., Mastering Criminal Law (1st ed., Carolina Academic Press, 2008)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor and Roger S. Clark, Understanding International Criminal Law (2nd ed., Carolina Academic Press, 2008)Clicking on the button will copy the full recommended citation.
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Candace Zierdt and Ellen S. Podgor, Corporate Deferred Prosecution through the Looking Glass of Contract “Policing”, 96 Ky. L.J. 1 (2007)Clicking on the button will copy the full recommended citation.
This article examines deferred and non-prosecution agreements entered into between corporations and the Department of Justice (DOJ) through the lens of contract policing theory. It adds a new dimension to the contractual law now applicable to plea bargains and proffer agreements by suggesting key provisions that should be prohibited in deferred prosecution agreements. Three provisions common to many deferred prosecution agreements, or used by the government as leverage to secure a deferred prosecution agreement, are of particular interest here. These are: (1) the requirement of a corporation to waive its attorney-client privilege; (2) the determination of a breach of the agreement being within the sole province of the government; and (3) the provision that corporations not abide by previously negotiated contract terms that allow the corporation to pay the attorney fees of corporate employees. Specifically, this article examines the viability of specific provisions within these agreements when matched up against contract policing principles such as duress and unconscionability. This article concludes that corporations are deprived of basic contract rights as a result of the over-powering prosecutorial power used in reaching these agreements.
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Ellen S. Podgor, The Challenge of White Collar Sentencing, 97 J. Crim. L. & Criminology 731 (2007)Clicking on the button will copy the full recommended citation.
Sentencing white collar offenders is difficult in that the economic crimes committed clearly injured individuals, but the offenders do not present a physical threat to society. This Article questions the necessity of giving Draconian sentences, in some cases in excess of twenty-five years, to non-violent first offenders who commit white collar crimes. The attempts by the U.S. Sentencing Commission to achieve a neutral sentencing methodology, one that is class-blind, fails to respect the real differences presented by these offenders. As the term white-collar crime has sociological roots, it is advocated here that sociology needs to be a component in the sentencing of white collar offenders.