Unformatted text preview: The Concept of White Collar The Concept of White Collar Crime and the Role of Moral Ambiguity
White Collar Crime
CRJU E491W Fall 2011
William C. Smith The Obscurity of the Term
The Obscurity of the Term The term “white collar crime” occurs rarely in substantive criminal law, appears in only a few obscure criminal statutes, and the question whether an offense should even be considered a white collar crime has arisen in very few court cases.
Not until 2002, after enactment of the Sarbanes
Oxley Act (SOX), an important piece of federal criminal legislation, did the term make a prominent appearance.
Because of the infrequent usage of the term, there is widespread disagreement as to how it should be used. The Contexts
The Contexts The term means different things to social scientists; law enforcement officials, prosecutors, and defense attorneys; law professors; and to those involved in drafting substantive criminal law legislation.
Although the origins of the term are easily understood and widely acknowledged, Sutherland’s pronouncement of the concept was “vague and inconsistent” in terms of defining precisely what it should encompass. The Current Debate
The Current Debate Three critical issues frame the current debate over usage of the term: (1) Should the term refer only to activity that is actually criminal, or also to other forms of noncriminal “deviance”?;
(2) Should the term refer to behavior (whether criminal or not) engaged in exclusively or primarily by particular kinds of actors, such as those who occupy certain jobs or have a high socioeconomic status; or should it refer instead to some particular kinds of acts?; (3) Assuming that the term should refer to a particular category of criminal acts or other deviant behavior (rather than to actors), what factors should determine which acts will be included? Activity That is Actually Criminal
Activity That is Actually Criminal To lawyers, when one talks about “white collar crime,” one should be talking about some subcategory of conduct that reflects criminal lawlike characteristics. Thus, some argue that only conduct regarded as criminal by the law should be included in the notion of white collar crime. Sociologists and criminologists are concerned with describing patterns of behavior, its causes, and society’s attitudes towards it, not with “legal labels and categories.” Others argue that another term, such as “elite deviance,” is a better choice of terms and can describe both actual crimes committed by the elite and deviant activities of the elite that do not violate the criminal law. Overlapping Conduct
Overlapping Conduct A great deal of conduct falling within the scope of various federal statutory schemes can be treated either as a crime or as a civil violation and the distinction between deviant activity that is determined to be criminal and that which is not may be simply arbitrary.
Use of a term such as “elite deviance,” however, will not necessarily alleviate the definitional dilemma because not only is there deviant behavior that is not criminalized, but, as well, criminal activity that is not regarded as deviant. Additionally, much “white collar crime” is not committed by members of elite groups. Conduct by Particular Actors
Conduct by Particular Actors In common vernacular, referring to a crime as “white collar” draws attention to the characteristics of the person,or entity, who committed it.
From the perspective of the criminal law, however, equal protection concerns prohibit distinguishing among offenders on the basis of social status, or other personal characteristics. One recommendation has been to replace the term “white collar crime” with two alternate terms: “corporate crime” and “occupational crime.” Corporate vs. Occupational Crime
Corporate vs. Occupational Crime Corporate crime refers to offenses committed by corporations and their officials for the benefit of the corporation.
Occupational crime refers to offenses committed “in the course of activity in a legitimate occupation” and applies to offenses involving persons at all levels of the social structure. Problematically, however, much of what could presumably be classified as “occupational” crime, including theft of office equipment, workplace assaults, police brutality, and serial killings of patients by doctors and nurses, would not ordinarily be considered white collar crime. What Factors Should Determine
What Factors Should Determine Is it possible to use the term “white collar crime” to refer exclusively to a category of criminal offenses that reflects some particular group of legal or moral characteristics?
In some contexts, this approach has used by various lawyers and law enforcement officials interested in formulating a standard definition of “white collar crime.” The FBI Definition
The FBI Definition The FBI defines “white collar crime” as follows: [I]llegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or to secure personal or business advantage. The BJS Definition
The BJS Definition The Bureau of Justice Statistics of the U.S. Department of Justice defines “white collar crime” as follows: [N]onviolent crime for financial gain committed by means of deception by persons whose occupational status is entrepreneurial, professional or semi
professional and utilizing their special occupational skills and opportunities; also, nonviolent crimes for financial gain utilizing deception and committed by anyone having special technical and professional knowledge of business and government, irrespective of the person’s occupation. The Term in LawRelated Contexts
The Term in LawRelated Contexts The emergence of white collar crime as a distinct practice area can be seen among defense attorneys as well as prosecutorial offices and law enforcement agencies.
Still, the definition of what constitutes “white collar crime” varies within and among these groups. Substantive Criminal Law
Substantive Criminal Law Substantive criminal law defines the necessary elements of proof for criminal offenses (i.e. the corpus delicti).
Although the term has been used for purposes of sentence modification for other specifically described offenses; has been used to identify a class of victims; and has been used to describe a general category of offenses, the term “white collar crime” has no specific significance other than as a label to signify a legislative intent that “white collar crime” should be distinguished from “street crime.” The SarbanesOxley Act
The SarbanesOxley Act The SarbanesOxley Act, frequently referred to by the shorthand SOX, was passed in 2002 in the wake of a number of corporate crime scandals involving firms such as WorldCom, Adelphia, Tyco, Arthur Andersen, and Enron.
Although SOX was enacted specifically to address the problems associated with “white collar crime,” and Title IX of the Act specifically addresses “white collar crime penalty enhancements,” there is no definition of the concept anywhere in the Act; it does not assign any specific doctrinal significance to the term, and the Act appears to make use of the term simply as a means of signaling a change in attitude in terms of punishment for such offenses. Historical Hindsight
Historical Hindsight Based on today’s conceptualizations, the term “white collar crime” is probably an unfortunate choice of terms for the offenses and concepts that fit within its rubric.
The term was vague and imprecise when Sutherland first conceived it, and seems even more so today, frequently meaning the opposite of what it says, such as when it is used to refer to deviant, noncriminal activity. WCC and Family Resemblance
WCC and Family Resemblance How should the term “white collar crime” be utilized today?
Green suggests that the AustrianBritish philosopher Wittgenstein’s concept of “family resemblance” to refer to objects that have similarities, suggests the most logical approach to explaining the concept of white collar crime.
Green proposes that the term should be understood to refer to “a loosely defined collection of criminal offenses, forms of deviance, kinds of offenders, and moral concepts that share a series of similarities and relationships.” If white collar crime is thought of as a family resemblancetype category, then it would be essentially unsuitable as a component of the substantive criminal law because of the precision required in defining the mens rea and actus reus elements, defenses, jurisdictional elements, and procedural rights. Green suggests that “the fuzzier the boundaries” the weaker is “the moral authority” of the law and asks whether we should abandon the use of the term “white collar crime.” Where Should We Go? Where Should We Go? Green proposes that white collar crime differs from nonwhite collar crime in all three substantive dimensions of criminal offenses: Culpability which reflects the mental element with which an offense is committed, such as intent, knowledge, or belief;
Harmfulness which reflects the degree to which a criminal act causes, or risks causing, harm to others or self; and
Moral wrongfulness which involves the way in which the criminal act entails a violation of moral norms. Nonetheless, Green believes the term is useful from a legal theory standpoint but not so useful from a substantive law standpoint. Crime and Moral Wrongness
Crime and Moral Wrongness In a typical criminal case, such as murder, rape, and robbery, there is an underlying assumption that the offense committed was, from a moral perspective, wrong.
In cases involving “white collar” crimes, however, there may be a genuine doubt as to whether what the defendant was alleged to have done was in fact “morally wrong.” Defining Morality
Defining Morality As a general proposition, morality can be seen as the quality of being, and acting, in accordance with standards of right or good conduct.
Some commentators, such as Green, have argued that when there is a difference between what the law defines as morally wrong and what society views as morally wrong, “moral ambiguity” is the result, as appears to be the case with white collar crime. The Nature of Crimes
The Nature of Crimes Crimes are specific types of conduct that are declared, by law, either statutory law or common law, to be morally “wrong.”
Crimes are not “civil wrongs,” such as torts, that are addressed by private actions between the parties involved. They are “public wrongs,” the resolution for which belongs exclusively to the State and for this reason, a crime carries with it a stigma of moral wrongness.
A crime’s moral stigmatization comes about due to its inherent “wrong” nature or based upon a legislative declaration of the act’s “wrongness.” Determining Wrongness
Determining Wrongness In the United States, acts become criminal based upon one of two determinations: the act is malum in se or it is malum prohibitum. Malum in Se The term is Latin and refers to an act that is “wrong in itself;” its very nature being illegal because it violates the natural, moral or public principles of a civilized society. Examples of malum in se offenses include murder, burglary, and robbery.
Malum Prohibitum The term is Latin and means “wrong due to being prohibited,” and refers to crimes made so by statute, compared to crimes based on English common law and obvious violations of society's standards which are defined as malum in se. Examples of malum prohibitum offenses include speeding, unlawful weapon offenses, and drug offenses. Why Moral Ambiguity?
Why Moral Ambiguity? Most common criminal offenses can be clearly tied to some moral basis for their prohibition which basis is, in major part, supported by society. For example, a malum prohibitum offense, such as that prohibiting possession of an unlawful controlled substance, might find its basis in the generally accepted societal belief, reflected through elected lawmakers, that certain controlled substances are harmful to public health.
Arguments abound, however, that the distinctions legislators have drawn between substances such as marijuana and tobacco are sometimes arbitrary and morally questionable.
In cases involving white collar crimes, the moral aspect of the prohibited act is frequently not apparent to the public at large. Why is this so? Criminality vs. Aggressive Behavior
Criminality vs. Aggressive Behavior The determination to charge certain behaviors as criminal acts is a matter of “prosecutorial discretion” and the personal predisposition of the prosecutor often plays a large role in whether similar, or even identical, acts are charged.
Green argues that some “white collar” offenses are difficult to distinguish from conduct that involves “merely aggressive” business, litigation, or political behavior and that subtle differences in the facts of a situation, and the interpretation of those facts, determine the moral judgments we make about the defendant's conduct and whether the defendant should ultimately be tried and convicted. “Sticky” Norms There are many offenses involving conduct that, even in the most hardcore cases, is not universally viewed as morally wrong. Examples of such offenses include making unauthorized copies of CDs, DVDs, or computer software; downloading music from the Internet without authorization; and, in a more nontechnical sense, taking sleeping pills without a prescription. Offenses such as these are often said to be “overcriminalized” because prevailing social norms have not yet caught up to the legislation that makes the conduct illegal and, thus, societal norms are said to be “sticky” in regards to the offenses. Societal Uncertainty
Societal Uncertainty When there is a gap between what the law regards as morally wrong and what a significant segment of society views as morally wrong (i.e. where norms become “sticky”), moral conflict and ambiguity come about. This is especially true with white collar crimes for a number of reasons: They tend to involve more complex forms of underlying activity;
They involve hardertodiscern harms: and
They involve hardertoidentify victims. If people find it hard to recognize what kinds of harms a particular offense causes, or who suffers them, they are likely to be less certain that such conduct is wrong and should be subject to criminal sanctions. Determining Responsibility
Determining Responsibility In many white collar crimes, there is great difficulty in attempting to determine who, ultimately, is responsible for the harm caused.
Many white collar offenses occur within the context of large complex institutions, such as corporations, where responsibility for decision making and implementation is shared among boards of directors, shareholders, upper and midlevel managers, and linelevel employees.
As a result, it may prove difficult for many people to ascribe full moral responsibility to a person who commits an offense while operating within a structure whose rules, policies, and directives may have, in effect, caused the wrongdoer’s actions. The Criminality Problem
The Criminality Problem The criminal law has traditionally required not only that defendants cause social harm (actus reus) but also that they do so with a particular state of mind (mens rea).
People who cause harm without the requisite state of mind ordinarily cannot be said to be “at fault” criminally.
Yet, in many white collar offenses, such as those occurring within large organizations, there is such a “dilution” of the mens rea requirement, that it is almost impossible to say that any alleged individual perpetrator of the offense is morally culpable. An Example with No Answer
An Example with No Answer X, a constituent of Congressman Y, gives Y a certain amount of money which X refers to as a “campaign contribution.” If X acts with the expectation of receiving nothing in return, he has committed no offense; he has merely made a legal campaign contribution. However, X's act of giving money to Y would constitute a bribe if X “corruptly intended to influence” an official act. Question: How do we determine whether an actor, such as X, acted with corrupt intent? Judges and Prosecutors
Judges and Prosecutors Moral ambiguity in white collar crime is fostered not only by legislative bodies, but also by judges and prosecutors.
The public is influenced by how white collar crime is treated by prosecutors and by the courts. If white collar crime is treated as less serious than street crime, people tend to think of it as less serious. Public attitudes towards white collar crime, however, are also affected by portrayals made by criminal defense attorneys, the media, and the public relations industry. White Collar Defendants
White Collar Defendants Defendants in white collar criminal cases are much more likely than those in street crime cases to have funds to hire lawyers, investigators, paralegals, jury consultants, and others to assist in their cause.
Especially where the defendant has been financially successful, has contributed philanthropically, or is otherwise an attractive person, there is likely to be much moral ambiguity with respect to the “criminality” of the defendant’s acts; although in clear cut cases, the ambiguity is typically quickly resolved. Reducing Moral Ambiguity
Reducing Moral Ambiguity How can moral ambiguity in white collar crime cases be reduced? Avoid criminalizing conduct the moral wrongness of which is the subject of serious controversy;
Require proof of mens rea for all white collar crimes;
Specifically define the harms caused by, and the victims of, specific white collar crimes;
Integrate white collar crime more fully into existing criminal codes and create sentencing parity between comparable white collar and conventional offenses;
Require that conduct resulting in criminal liability be distinguished clearly from conduct resulting in civil liability; and
Formulate rules to establish how criminal responsibility should be attributed to individuals working within large organizations. ...
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- Fall '11
- white collar, prosecutor