Miriam Baer: Author of Myths and Misunderstandings in White Collar Crime

We were honored to host Miriam Baer, Vice Dean and Centennial Professor of Law at Brooklyn Law School and a former federal prosecutor, as our December 2023 White Collar Support Group Tuesday Night Speaker Series presenter. Miriam came to talk about her book, Myths and Misunderstandings in White Collar Crime, and about why the federal criminal code leaves almost everyone, inside the system and out, unable to say what it is actually doing. You can watch the full recording above.

If you have ever read your own charging document and wondered why one set of facts became a stack of counts, give this hour to Miriam. She does not think a hidden hand arranged your case. She thinks the code that produced it was built in layers and never designed, and hearing a former prosecutor say so changes how the paperwork reads.

Overcriminalized or under-enforced? Why neither complaint explains your case

Miriam started where the public conversation starts, with two criticisms that contradict each other. One says we have criminalized too much and punish too harshly. The other, which surfaces whenever somebody asks why no bank chief executive went to prison after 2008, says white collar crime is barely enforced. Together they become the story everyone repeats: harsh on the powerless, soft on the powerful.

She rejects that story, and her reason is the interesting part. Believing it means believing the code is coherent enough to be aimed at anybody. Teaching state criminal law after years as a federal prosecutor, she noticed that state codes arrive pre-sorted into degrees, which is why ordinary people use first degree and second degree correctly. Federal fraud law has no degrees. It has mail fraud, wire fraud, healthcare fraud and probably a conspiracy count, all reaching the same conduct from different directions. Our members know how that feels from the receiving end, and so did the jury in P.G. Sittenfeld’s case, which split one set of facts into four acquittals and two convictions. Her larger worry is that flat overlapping statutes tell the public nothing about what prosecutors chose, while Congress leaves the defining to judges and agencies and the severity to the sentencing guidelines.

The difference between breaking a federal law and getting charged

On television there is a single question, whether the evidence is enough, and it gets a yes or a no. Miriam says there are two separate lines, and that confusing them is what makes the system unreadable.

The first is liability. If every fact were known, if we were omniscient, has a federal crime occurred? Her read on where that line sits is not reassuring. Between conspiracy, false statements, obstruction of justice and the fraud statutes, she thinks crossing it is easier than almost anyone outside the system imagines. The second line is viability, the prosecutor’s private read on whether the case can be won, and that one is written down nowhere.

It’s subjective and it’s variable and it’s all in the prosecutor’s hands.

Most enforcement lives in the gap between the two, and Miriam does not think the government itself keeps the lines straight, which is what makes the layers of sign off Karen Kelly counted before a criminal tax count can be authorized so unusual. That gap is also the honest answer to why ex-government lawyers command what they command once they move to the defense side. They can read the second line, which is much of what Alex Little spent his own hour with us describing. Miriam has ideas about what the government could do to narrow the gap, and they are not what you would expect from someone who used to charge these cases.

How a former prosecutor would rewrite the federal fraud code

The fix she proposes is deep in the weeds, and she warns the room before she goes there. Four moves: unbundle the statutes that carry unrelated crimes under one roof, relabel the ones whose names hide what is actually being prosecuted, consolidate the redundant flavors of fraud, and grade what is left. Grading is where she is most pointed, because it cannot rest on dollars alone.

There’s a difference between $1 million in loss felt by one person as opposed to, you know, $1 felt by a million people.

Consolidation, she argues, would help defendants directly. A press release about fifteen counts frightens a family far more than the guidelines math warrants, and every insider in the courtroom already knows it.

Underneath the four moves is her answer to why a criminal code exists at all: notice, restraint of the punisher, and a third purpose she says we almost never discuss, telling the public what its government actually did. She would hand the work to Congress, and she is far more specific about who belongs in the room than about what the room is called. Regulators, investigators, judges, prosecutors, and criminal defendants. A former federal prosecutor, saying out loud that the people the code gets used on belong at the table where it is rewritten, a seat Adam Bentley Clausen took on a U.S. Sentencing Commission advisory group after he came home. If you have spent the last two years being talked about rather than talked to, that sentence is worth the hour on its own.

About Miriam Baer

Miriam Baer is the Vice Dean and a Centennial Professor of Law at Brooklyn Law School. She was a federal prosecutor before she began teaching roughly fifteen years ago, and she credits the move from federal practice into a state law classroom with much of the thinking in her book. During the 2021 to 2022 academic year she was a Visiting Fellow at Harvard University’s Edmond J. Safra Center for Ethics, where she worked on Myths and Misunderstandings in White Collar Crime, published by Cambridge University Press.