New Comments Address Fraud Sentencing and Deferred Prosecution Agreements

The latest issue of the Marquette Law Review features a student comment by Ryan Parsons on the treatment of “temporary victims” under the federal sentencing guidelines.  In crimes such as bank fraud, individual accountholders that have been defrauded are often reimbursed by the bank and, therefore, made economically whole.  Such reimbursed accountholders are often ignored for purposes of sentencing enhancement, even though reimbursement may not occur without time and effort expended by these temporary victims.  Parsons describes how various courts have dealt with this phenomenon, as well as the Federal Sentencing Commission’s recent decision to include all such temporary victims in the enhancement calculation regardless of whether the defrauded accountholders even knew about the fraud.  Parsons argues that in order for a sentence to accurately reflect the severity of the crime, temporary victims should be taken into account to the extent that they suffered actual, monetizable losses (e.g., time spent pursuing mitigation).

This issue also includes Rachel Delaney’s comment analyzing the use of deferred prosecution agreements (DPAs) in the corporate crime context, ultimately calling for congressional regulation of prosecutorial discretion.  

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We Have Met the Other and He Is Us (Law Professors)

In the latest development in what is starting to feel like a trip  “through the looking glass” to some bizarre version of the legal world as I understood it in law school, actual, important politicians have raised the spectre of  repealing or amending or re-interpreting the Fourteenth Amendment, specifically, its provision that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  It seems especially sad that those who want to abolish or change the long-standing, post-Civil-War principle of birthright citizenship in the United States are, mainly, Republicans: one might call the Fourteenth Amendment “one of the [Republican] party’s greatest feats,” as did the Economist in the article linked above.  In any event, the Economist article does a pretty fair job, I think, of discussing the various perspectives on the issue (including pointing out that the so-called “anchor baby” idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21).

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Housing Discrimination in New Berlin?

The current controversy regarding “affordable housing” in New Berlin illustrates the weakness of federal law regarding housing discrimination based on socioeconomic class.

By way of backdrop, New Berlin is a suburb southwest of Milwaukee on the eastern edge of Waukesha County.  When a developer came forward with plans for low-cost rental housing in New Berlin, some members of the City’s largely white, bourgeois population expressed opposition.  New Berlin’s Plan Commission then hastily nixed the affordable housing idea.  This led in turn to an investigation by the United States Department of Justice’s Civil Rights Division. 

I anticipate the investigation will not lead to legal action.  No information has emerged suggesting New Berlin’s actions were explicitly aimed at racial or ethnic minorities, and this is significant when federal law is applied.  The federal Fair Housing Act, for example, was enacted with race and ethnicity rather than socioeconomic class in mind.  In addition, while race is surely a viable basis for an equal protection argument under the Fourteenth Amendment, socioeconomic classifications are not “suspect” and therefore can be justified with a conventional claim of rationality.

Has New Berlin engaged in housing discrimination by excluding affordable housing and the poor and working-class people who might rent such housing?  It appears that the dominant ideology as re-packaged by the federal law offers little help when facing exclusionary practices geared to socioeconomic status.  Under the law, the United States has no class.

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