This
month’s article, by Shanna Van Slyke and William D. Bales, deals with the
sentencing of white collar criminals. The study analyses sentencing guideline data
from Florida for the period 1994 to 2004, comparing ‘in/out incarceration sentences’ for white collar crimes with the
offences of burglary and theft.
The
authors seek to investigate whether white collar offenders in the 21st
century enjoy sentencing leniency compared with nonviolent, street level
property offenders.
Their findings suggest that, despite operating under sentencing guidelines
designed to reduce disparities, white collar offenders are afforded greater
leniency, though this relationship varies by the type of white collar crime
considered, the offender’s social status, and whether the sentencing occurred
before or after the Enron scandal (a national corporate scandal in USA during
the period 2001-2002).
The
article kicks off with analyses of white collar offenders in the 21st
century. The conventional wisdom has always asserted that white collar offenders are
viewed in a different
light by the public and are treated less punitively than street offenders by the
criminal justice system; however, sentences arising from the aforementioned
Enron scandal and others, has cast doubt on this long held assumption. For
example, Jeff Skilling, former CEO of Enron, received a 24 year sentence for
the offences of conspiracy, insider trading, and lying to auditors.
The
article goes on to compare definitions of white collar crime. Sutherland
proffers an offender based definition, imagining white collar crime to be ‘committed by a person of respectability and
high social status in the course of his occupation.’ This definition accords
with the social status based explanations for sentencing leniency or the ‘status shield’ that purportedly protects
white collar offenders from harsh treatment. In addition, many of the
mitigating factors that judges may take into account in sentencing, such as
stable employment, family relationships and community involvement, are more
likely to be present in the life of the typical white collar offender. Finally,
it is also argued that the Judge may take the view that undergoing the process
of arrest, detention and trial is punishment enough for a person with the
social status associated with white collar offenders. Moreover, the status
shield may operate in a more instrumental manner. For example, it has been
suggested that the political influence associated with white collar offenders makes
them particularly immune to punishment, as prosecutors may feel too threatened
or intimidated to prosecute them for fear of retaliation or other negative
consequences.
A
second perspective, which is adopted in this article, focuses on the
characteristics of the offence
rather than characteristics of the offender to explain the greater
leniency afforded to white collar crime. Legalistic factors that operate in
favour of white collar criminals include the greater complexity of the typical
white collar crime, the diffuse
nature of the victims who are oftentimes unaware of their victimisation and
thus do not report it, the specialised knowledge required to investigate and
prosecute many of these cases, jurisdictional issues stemming from the
geographical distance between perpetrator and victim(s), and the reluctance of
prosecutors to pursue such cases that tend to place an onerous burden on an
already overwhelmed court docket.
A
third perspective draws upon a large body of public opinion literature and argues
that both the public and the criminal justice system view white collar crime to
be less serious than street crime and, consequently, less deserving of lengthy
penal sentences. A 1988 study by Wheeler et
al found that harm and seriousness variables, including presence or threat
of physical violence, amount of monetary loss, duration of the offence, nature of
the victim and violation of trust, were among the most important determinants
used by judges in their sentencing decisions. The authors point out that this
suggests that if a crackdown on white collar crime is in fact underway, one
potential explanation for it could be the increasing recognition of the
seriousness of these acts and a growing intolerance of white collar crime in
general, brought about by developments, such as increased media attention on
white collar crime, the consumer movement, environmental concerns and the equal
rights movement which prompted scholars to question the over-representation of
offenders from socially disadvantaged backgrounds in prison, despite the
immensely harmful criminality of the more powerful and well-connected members
of society.
The
next section deals with the existing empirical research in this area, most of
it dating back to the 1970s. The authors of this study, therefore, present
their work as a timely update to the literature. According to the them, two
lines of research, both conducted prior to the introduction of sentencing guidelines,
dominate this area of white collar crime scholarship: (1) the examination by
Hagan et al of sentencing patterns
for white collar and street offenders
in 10 federal district courts from 1974 to 1977; and (2) the Yale studies that
combine quantitative and qualitative research to evaluate the assessments made
by judges in federal white collar crime cases from 1976 to 1978. Hagan et al found that white collar offenders generally
did not receive more lenient treatment at the sentencing stage of the criminal
justice process. In addition, it was found that the specific type of white collar
crime considered impacted sentencing outcomes and that the Watergate scandal of
1970s had no appreciable effect
on sentencing disparities because the greater tendency to sentence white collar
offenders
to prison after Watergate was offset
by their shorter sentences.
The
article then goes on to address the authors research in relation to the
following questions: (1)
Are white collar offenders
sentenced more leniently than comparable street level property offenders; (2) Does
the type of white collar crime committed impact the relative sentencing severity
of judicial sanctions; (3) Are high status white collar offenders sentenced
more leniently than low status white collar offenders; and (4)
Are white collar offenders
sentenced more harshly following Enron than similar white collar offenders sentenced
before Enron?
In answer to question (1) it was found that white
collar offenders were 33.4 percent less likely than street criminals to receive
prison sentences. In relation to question (2) considerable variability in
sentencing was found across specific types of white collar crimes. Frauds
against businesses, those involving credit card fraud, and bribery were
significantly more likely to be imprisoned, while offenders convicted
of defrauding the Government and embezzlers were no more or less likely to be
imprisoned than consumer fraud offenders.
In relation to question (3) the findings indicate that offenders convicted
of the more high status white collar crime (Medicaid provider fraud) were
significantly less likely to be imprisoned, with the odds of receiving a term of
incarceration 98.7 percent lower than comparable offenders sentenced
for a low status white collar crime (public assistance fraud). The finding for
question (4) show there was a significant increase (up 30.7 percent) in the
likelihood of white collar criminals receiving an prison sentence after Enron, while
there was no significant change in the likelihood of imprisonment for offenders convicted
of street crimes.
Discussion
In order to
fulfil the principle of equality before the law is it necessary to treat white
collar criminals more leniently, seems as a prison sentence will inevitably
impact more harshly on a middle class offender?
And so kicked off our discussion on sentencing white
collar offenders. The characteristics of
the typical white collar offender were thought to be relevant, as usually he or
she will be employed long-term, have a stable family relationship, and may be
active in their local community, all things which mitigate against a harsh
prison sentence. It may also be judged that after their scare with the law they
are unlikely to re-offend and thus pose a low risk to society. Therefore, on the
ground that imprisonment serves no practical purpose other than to punish,
which every member of the group was opposed to, it may be legitimate to hand
down more lenient sentences to white collar criminals. It was also argued that
for a middle class offender, prison may not even be the harshest punishment,
and that the process of arrest, trial and detention are punishment enough as
they usually lead to a loss of status, professionally and personally.
Against this point of view, it was argued that
although it might be the case that a middle class person’s subjective
perceptions of spending time in prison are worse than a street offender who is
well accustomed with the system, this is no reason to excuse middle class
offenders from serving lengthy sentences. Three points were proffered in
support of this position. First, middle class offenders are better equipped to
access legal counsel who can argue their defence and so affording them
privileges in respect of sentencing tilts the balance of justice unfairly in
their favour. Second, the criminal law has decided that imprisonment is a
suitable punishment for criminal acts and objectively prison in fact hurts
people, whether or not their subjective preferences have adapted to the harsh
reality of a prison regime. Third, the public’s perception that white collar
offenders get off lightly may not deter future offenders from criminal
activity. Although, it was conceded that sentencing works on the basis of the
offender’s individual responsibility and it may not be fair to factor in to
someone’s sentence the need to set a general deterrence.
The practice of sentencing guidelines in USA was
also discussed and their application was explained to the group. Judges’
discretion is severely fettered in that
they apply the facts of the case (the scale of offence, previous convictions,
mitigating circumstances) to a scale and are given a sentence to hand down. The
process has led to harsher sentences across the board but still more lenient
for white collar crimes compared with street level crimes. It was suggested
that if an objective scale turns out more harsh punishment for street offenders
it might be that they are deserving of longer sentences due to the risk they
pose to society and the harm they have committed. However, it was argued that
perhaps there is an inherent bias in the US sentencing guidelines which has
created the perception that street crime is more harmful. It was noted that
corporate crimes, although the effects are usually diffuse, can lead to very
serious consequences such as environmental damage, economic loss and sometimes
death. For example, Enron’s mismanagement of the energy market in California
led to rolling blackouts during which residents suffered hugely and some people
died.
The discussion then led on to sentencing guidelines
in Ireland which were roundly criticised for lack of consistency. The latitude
between the sentence a judge in Dublin Circuit Court and a country court, in
say Mayo, might hand down for the same offence can be huge, leading the group
to talk of a ‘geographical lottery.’
The practice of judge-picking was also discussed, whereby cases are adjourned
until a perceived more favourable judge is sitting. The option of judicial training was discussed in order to
achieve better outcomes in sentencing. It was felt that such a practice might
work well for sexual offences; however, it’s applicability for corporate crime
was doubted. Many of the biases of judges may be unconscious, such as
identifying with the offender and it may not be possible to train judges not to
hold such views.
The impact of public perception on sentencing was
also discussed and it was favoured by the group that public opinion shouldn’t
weigh too heavily on judges decisions. Although it was accepted that inevitably
it is the case that fear of public outcry plays on judges' minds. The example of
Carney J’s reversal of a suspended sentence in Fiona Doyle’s case was given, as
well as judge’s references to Love/Hate in the context of a gangland crime
case. It was felt that series such as Love/Hate and the media’s reporting of
trials can lead to a sort of moral panic regarding a crime explosion in
Ireland. It was felt that this may play on a judge’s decision to hand down
harsher sentences for street or gangland criminals.
The discussion ended with a look to the future and a
discussion of the upcoming Anglo cases for their effect on the judiciary’s and
public’s view of the gravity of corporate crimes. This week’s article provided a useful focal point
for the group’s discussion of white collar crime sentencing and sentencing
guidelines in general.
This month's blog was written by Angelina Cox.
The views expressed herein are those of the author's alone.
