White Collar Prosecutions Reach 20-Year Low

August 17, 2015

Author: Zachary Greene

Contributed to the American Bar Association's Criminal Litigation Committee News & Developments

Data released by the Justice Department show that the federal government is prosecuting white collar criminal cases at the lowest rate in two decades. According to an analysis conducted by the Transactional Records Access Clearinghouse at Syracuse University, if prosecutions continue at the same rate through the end of the federal fiscal year in September, the number of white collar cases filed will have declined by nearly 37% since 1985.

The Syracuse analysis does not explain the reason for the decline in prosecutions during a period of economic and population growth other than by generally attributing the slide to "shifting enforcement policies," changes in prosecutorial staffing, and revised statutes. An interesting theory for the 29% decline in white collar prosecutions over the last five years and the 12% reduction since last year could be the "too big to jail" concept arising from the federal government's pursuit of financial institutions for misconduct associated with the 2008 recession. Ten years ago, bank fraud charged under 18 U.S.C. § 1344 was the top lead charge filed by federal prosecutors. Five years ago, bank fraud was overtaken by aggravated identify theft as the top lead charge, and stands to fall to third-place this year behind wire fraud and public corruption.

Unsurprisingly, the data show that health care fraud may be the next major frontier for federal white collar activity, with prosecutions charging 18 U.S.C. § 1347 as the lead count surging 22% over the last five years.

While the Southern District of New York is usually considered the epicenter of the white collar criminal practice, 2015 stands to be the first year in which that district leads the nation in the number of white collar prosecutions relative to its population. The Southern District of Alabama (Mobile) comes in second, followed by the Southern District of Florida (Miami), the Eastern District of Louisiana (New Orleans), and the Eastern District of Missouri (St. Louis). Washington, D.C. is in 42nd place.

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