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Citation:
Alan B. Morrison, Sentencing in Criminal Antitrust
Cases, 46 Antitrust L.J. 528, 533 (1977)
Copyright Information
'United States v. H.S. Crocker Co., 4 TRADE REG. REP. (CCH) 45,074, at 53,563-3-564
(N.D. Cal. 1974).
2
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
SENTENCING CRIMINAL ANTITRUST DEFENDANTS
Well, everybody says these people are not really criminals. I suggest to
you that's wrong, except in one sense: and that is if you mean that they
don't look like criminals, they don't act like criminals, they don't dress like
the kind of criminals that you and I think of when we go down to the
local court system. Then in that sense you're right. They are a different
kind of criminal; yet they have committed larceny and they know it.
Now the problem in sentencing arises from the fact that these individuals
who come before the federal district court judges do not seem like criminals.
And it is easy to see why their sentences are different from sentences given
to purse snatchers or burglars. It is a little less clear why they should be
treated so differently, for instance, from tax fraud violators or securities
fraud violators. Yet the record is clear that that is what in fact has happened.
you normally don't think about sending to jail. They are all from impeccable
backgrounds; they have all performed community services; they all have
wonderful families who are standing before the district judge in the court-
room. And we are always beset with the same claims: that the conviction
has already ruined their career; that the conviction alone or the indictment
alone is enough punishment; that they have already lost the respect of their
family and their friends; and they will never recover. Yet, in spite of that
fact, everyday price 'fixing is going on, and individuals in the business
community are simply not being deterred by fear of punishment.
The heart of the problem, it seems to me, is that many of these judges
have defended antitrust defendants, perhaps not the very ones that are before
them but others very similar. They have not only defended but they have
befriended them, either at the local country club or at the local Rotary
Club or someplace else in town. They empathize with the problems of the
business community, and when they come face to face, eyeball to eyeball
with the family standing in the background, they find it, as Blair White
said, distasteful to sentence anyone, particularly an upstanding member of
the business community.
I believe that the solution to the problem is to eliminate the discretion
of the district court judge in the matter of sentencing antitrust violators.
It is my view that as soon as possible by statute or immediately by practice
in each district court, a rule ought to be adopted under which a minimum,
mandatory sentence of 30 days ought to be imposed on any antitrust viola-
tors. This would not, of course, suit the views of many who believe that
each sentence should be tailor made to the individual to produce precisely
the right kind of fairness. It would be, in my view, more of a mass-produced
sentence under which we start off with the absolute minimum under which
everyone goes to jail for 30 days. There are no probations, no suspended
sentences, no soft jail places. They go where everyone else goes for a period
of 30 days.
The principal value, it seems to me, of this kind of sentence is its certainty.
Thirty days means thirty days of very distasteful life. Prisons are not fun,
and I think that everyone who has been near them can attest to that fact.
new Justice Department Guidelines3 are not likely to get off the ground,
and are not likely to be in the real world of sentencing until we have a
situation in which people who are convicted are going to jail.
Now what do we do about cooperating witnesses? It seems to me this
is a very good incentive for cooperating witnesses; that is, to tell the witness
"you get on board now, before we indict anybody, because once you're
indicted we don't have any choice-the decision you have to make, you
have to make it now." Now that starts a man, or perhaps a woman, thinking
about what to do with the situation and the government.
For those of you who are familiar with mandatory sentences in the narcot-
ics area, and are familiar with what is probably a very poor record of them
there, I suggest to you that is not a very good analogy. They are involved
in most cases with people who are addicts, for whom deterrence is an irratio-
nal matter, something of no effect for somebody who needs a "fix" of a
narcotic. And, for those who are the major suppliers in the matter, the
money is so enormous and the risk of being caught is so small that the
certainty ofjail sentences do not affect anyone.
It seems to me at the very least that it is worth the experiment with
mandatory, minimum sentences of thirty days.
Now let me just mention a couple of other matters on the sentencing
that I would like to see brought about. In the first place, I believe that
the Justice Department should include in every indictment in a criminal
antitrust case an individual. Corporations do not commit crimes by them-
selves. And since the Justice Department cannot now prevent-although
perhaps it should be able to prevent-corporations from entering pleas of
nolo, there hardly seems to be a reason to bring a criminal antitrust action
with no individual defendants, regardless of the fact that corporations can
have larger fines imposed against them. It would be far better for the Justice
Department to allocate its resources in other directions when they are not
prepared to charge any individuals with a crime.
-See U.S. Department ofJustice Guidelines for Sentencing Recommendations in Felony Cases
Under the Sherman Act, reprinted in 803 ANTITRUST & TRADE REG. REP. (BNA) at F-1 (Mar.
1, 1977).
ALAN B. MORRISON
4
Commissioner v. Tellier, 363 U.S. 687 (1966).