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...
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