SJ Quinney College of Law, University of Utah
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Abstract

Over the past few decades, combating criminal health care fraud has become one of the highest priorities of federal law enforcement, which views and treats it as a financial crime that causes vast economic losses to the government and private insurers. But the crime also causes, or threatens, physical harms to individual health care patients, a class of victims that the criminal justice system often fails to recognize. This Article is the first to explore how structures and hidden levers of power within the criminal justice bureaucracy lead agents and prosecutors to select—and ignore—particular harms and victims and, more importantly, what drives their selections. The implications extend beyond health care fraud.

Questions about this form of prosecutorial discretion are surprisingly absent in the scholarly literature. Through the lens of health care fraud, I show that features of statutory frameworks and sentencing guidelines can have an outsized influence on the selection of harms and victims in complex cases, often in unintended ways that merit greater scrutiny. Internal dynamics within the criminal justice bureaucracy, including those driven by governmental interests as well as the interests of agents and prosecutors themselves, also play a significant role. These factors combine to spur our criminal justice system to treat health care fraud as just another flavor of fraud, devaluing victims and skewing punishments of offenders who exploit patients as a means to enrich themselves.

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