How to Deter White-Collar Crime--My Most Recent Piece

You can read my first piece for The Nation (online) here.

It takes the position that white collar criminals are the only rational actors in the criminal justice system and as such respond to deterrents. It also suggests that it is the conditions of confinement rather than the term of imprisonment that makes the difference. So what to do?

Send the corporate crooks to max joints.


Anonymous said...

I can't accept your premise here. My personal view is that people want to have it both ways with prison - on one hand, it is justified as a means of removing dangerous people from society, and yet also it's supposed to be unpleasant but "humane" at the same time, how can it be both? Think corporate crook Martha Stewart, allowed freedom pending appeal as she was considered in the words of the judge 'not a danger to society' - if she's not a danger, why lock her up? Well, to be unpleasant to her, to cause physical or psychic pain, as just punishment, but nobody wants to come out and say it! The same people who think that it is humane to put a pot smoker in jail for months would be absolutely horrified if "pain centers" were set up where an offender would report on weekends for a therapeutic dose of excrutiating, yet non disfiguring torture. Why? There's no real difference. We want to pretend that prison isn't punishment, and also believe that it is.

Our system should not be based on hypocrisy at the core, washing our hands and pretending we don't know what prisoners are going through while privately gloating about how they're probably being raped and otherwise assaulted or tortured by sadistic guards or at least threatened with such at this very moment! You want the Tyco crew beaten and raped and bullied by a specially selected group of known thugs, at least get the judge to do it. Get the judge to say "I hereby sentence you to be raped up the butt until you get HIV and die". Can't issue such a sentence? Than maybe, just maybe, we shouldn't be carrying it out. Think about that!

Indefensible said...

You may be surprised to know that I agree with you in the main--certainly about the hypocrisy at the core of punitive sentencing discussions. And again, I agree with you about the obscenity of retributive punishments.

Having been a PD for almost 15 years, I've spent a fair bit of time thinking about punishment and prison and to this day I watching anyone sentenced makes me queasy. That being said, I do think that those who believe in deterrence as a legitimate basis for penal sanction should want to see harsher conditions of confinement in white-collar situations, and I also wanted to make the point that most criminal justice policy--directed at the people I've spent my life representing, is utterly wrong-headed since my clients aren't ever deterred.

Believe me--I understand the horror of incarceration quite well. And I wonder whether you'd agree with me, but I think given a choice, many people would opt for the excruciating pain over incarceration--that's how bad it already is.

But lastly--let me quibble with you on one point--please don't forget--those "known thugs" you refer to, many of them are decent kind people with wives and friends and familiy--people who struggled to make a living and provide for the people they loved. These 'known thugs' are often doing long sentences for crimes far less flagrant that what Kozlowski did. It just happens that they're african american and poor. So I'd be very careful with that label--it probably applies to Kozlowski far better than to many of those he'll be incarcerated with.

Unknown said...

With the FBI's terrorist-diversion, the number of white collar crime cases are way, way down, compared to what they were pre-9 / 11.

So are prosecutions, running something like 30% down.

It's fast getting to the point where white collar crime will become the "perfect crime."

--Jack Payne