On the Alleged Disproportionate Sentencing of Cartel Managers

CPI Cartel Column by John M. Connor (Professor Emeritus, Purdue University)

Introduction

In a recent Commentary, four experienced antitrust attorneys opine that U.S. imprisonment-sentencing practices are unjustly severe and disproportionate (see Kapoor et al. 2016). In particular they charge that “… Japanese businesspeople have … received harsher treatment compared to other perpetrators of similar or worse misconduct…” (ibid.). Kapoor et al. infer sentencing discrimination from anecdotal evidence drawn from a large, sprawling global cartel, Auto Parts (see Connor 2012). Auto Parts is hardly representative of the U.S. Government’s campaign against international cartels that began in the early 1990s.[1]

There are contrary opinions from equally experienced antitrust counsel. Klawiter (2012: 99) avers that up to 2007 at least, non-U.S. executives who were resident abroad normally received a sentencing “discount” if they traveled from abroad to accept the jurisdiction of U.S. courts for sentencing purposes; the usual prison sentence in these cases was six to eight months in prison. After 2006, if an executive was arrested in the United States, he would receive no discount. Many of the Auto-Parts cartel executives lived and worked in the United States; if arrested on U.S. territory, they too might receive systematically longer sentences.

There are no publications that draw on broad samples and that address this gap in beliefs. The purpose of this note is to examine