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Monday, August 24, 2009

No Special Treatment for Madoff Cooperator

The Wall Street Journal Law blog posts here that U.S. District Judge Richard Sullivan has refused to let cooperator Frank DiPascali out on bail, even though DiPascali has pled guilty and is helping the government unravel the Madoff scheme. The reason this is newsworthy is that everyone expects courts to treat cooperators well, even when they've committed major crimes (DiPascali's crimes include helping Madoff, lying under oath to SEC investigators, and forging documents--he faces 125 years in prison). In other words, Judge Sullivan is the exception that illustrates the rule. It is more typical for prosecutors and courts to quietly accommodate cooperators--keeping them out on bail, dropping charges, and even helping them with criminal cases in other jurisdictions. In my view, and as I argue in my book, these commonplace accommodations and the culture of cooperation more generally have skewed the criminal system's approach to culpability. Offenders are evaluated as much for their usefulness as their wrongdoing, and even the most heinous crimes have become opportunities for negotiation. For a haunting example, read this story in the Washington Times entitled Drug Dealer Avoids Jail in Daughter's Killing, about a drug informant who avoided punishment for the death of his daughter who died of, among other things, a fractured skull and severe malnurishment.