Written by: Sally S. Simpson
Little has changed in the White-Collar/Corporate Crime arena since 1939 when Edwin H. Sutherland[1] called our attention to offending by persons who utilize their occupational positions and the opportunities therein to engage in illegal behavior [in spite of being “respectable and high status,”] as two recent editorials in the Washington Post[2] remind us. Michael Gerson questioned whether the justification that “everyone does it” will be a successful legal strategy for the embattled Trump administration and Catherine Rampell wondered why Paul Manifort hadn’t been prosecuted sooner (August 8, 2018)—after all, his alleged crimes took place long before he served as Trump’s campaign manager. Both editorials expose subjects and raise important questions that criminologists, and white-collar criminologists in particular, have investigated.
Gerson, for instance, points out that a common rationale employed today to excuse the ethics lapses, excesses, and crimes (yes, they are crimes) of Trump’s inner circle is that “everybody does it.” Criminologists call such excuses and others like it “techniques of neutralization.” These justifications are employed to counteract dominant social norms and blunt social opprobrium so as to clear the way for misconduct and are employed by juvenile delinquents and corporate criminals alike. If everybody does it—there must not be strong moral authority and consensus about right and wrong. Ergo, I might as well do it, too. Neutralization techniques can also be employed ex post facto to justify potentially stigmatizing behavior that has come to light and mitigate personal responsibility and blame for misconduct. Yet, this often doesn’t have the desired effect for delinquents—at least those who end up in the juvenile or criminal justice system who tend to be disadvantaged and disproportionately minority group members.[3] Business people, however, fare better because they are shielded against harsh criticism by “persons in governmental positions” who largely look like them, think like them, come from business backgrounds themselves, and all too often are personal friends.[4] They also tend to come from the middle-upper classes where societal power and influence are concentrated.
Drawing from patterns revealed in federal prosecution data, Rampell asks why enforcement of white-collar crime has plummeted over the past decade. Certainly, in the wake of the global financial crisis which was brought on, in part, by massive corporate frauds, one would have expected more (not fewer) criminal prosecutions. She offers reasonable explanations for the declines including changing federal enforcement priorities, declining resources post 9/11 when allocations reserved for white-collar crime were diverted to terrorism, and draconian budget cuts targeting agencies responsible for audits, investigations, and regulatory enforcement. Unmentioned, however, is Sutherland’s critical observation that white-collar criminals are relatively immune to criminal prosecution “because of the power of their class to influence the implementation and administration of the law. This class bias not only affects present day courts but to a much greater degree affected the earlier courts which established the precedents and rules of procedure of the present-day courts.”[5] Many white-collar offenders, especially businesses, are processed by civil courts or by regulatory bodies where they are “segregated administratively from other criminals, and largely as a consequence of this are not regarded as real criminals by themselves, the general public, or by the criminologists.”[6] Ironically, because these civil and administrative cases remain unintegrated into a systematic offending database and are legally “irrelevant” for a defendant’s criminal record, white-collar offenders can appear before the court with no evidence of a prior record. As Rampell notes, “On Fox news, Trump surrogate and former federal prosecutor Joseph diGenova objected to Mueller’s criminal prosecution of Manafort in part because Manafort ‘has no criminal record.’” White-collar offenders unlucky enough to catch a criminal case can still avoid the repeat offender designation at sentencing because of this segregation. Absent a criminal record adjustment that increases one’s sentencing score adding a concomitant increase in the recommended sentence, white-collar offenders again manage to beat the system.
There have been some important changes since Sutherland brought white-collar crime into our collective conscience, not the least of which is the change in public attitudes toward white-collar crime and criminals. From environmental degregation and the savings and loan scandals to accounting and mortgage frauds, the general public in the United States has come to view some forms of white-collar crime much more seriously than it did in the past.[7] But most criminologists continue to focus on more traditional forms of crime while the unethical and illegal activities of the President, his cabinet, and business associates remain relatively unscrutinized. White collars and red flags indeed.
[1] Edwin H. Sutherland, 1939. White-Collar Criminality. 34th Presidential Address to the joint meeting of the American Sociological Association and the American Economic Society, Philadelphia, PA.
[2] Michael Gerson, 2018. “Trump’s ‘everyone does it’ presidency. The Washington Post Editorial, August 8. Catherine Rampell, 2018. White collars and red flags.” The Washington Post Editorial, August 8.
[3] Melissa Sickmund and Charles Puzzanchera, 2014. Juvenile Offenders and Victims: 2014 National Report. National Center for Juvenile Justice, Pittsburgh PA.
[4] Edwin H. Sutherland, 1949. White Collar Crime. New York, NY: Holt Rinehart and Winston, Pp. 248-49. See also Stanton Wheeler, Kenneth Mann, and Austin Sarat, 1988. Sitting in Judgment: Sentencing the White-Collar Offender. New Haven, CT: Yale University Press.
[5] Edwin H. Sutherland, 1940. White-Collar Criminality. American Sociological Review V: 1-12, Emphasis added, p.7.
[6] Op Cit.
[7] Rodney Huff, Christian Desilets, and John Kane, 2010. The 2010 National Public Survey on White Collar Crime. Fairmont, WV: The National White Collar Crime Center.