Criminal offence If the breach of a legal rule (the wrong) has criminal consequences attached to it, will it be a criminal offence

Basic elements of most crimes 1. Actus reus: before a person can be convicted, it must be proved that he or she acted in a fashion proscribed by law: this is known as the actus reus of an offence 2. Mens rea: an intention to act in the proscribed fashion or to bring about the unacceptable ends, or in some cases reckless indifference to causing a particular harm.

Morality, economics, politics, power, public administration, public order and public safety all play a part in declaring certain acts or omissions as criminal

Does crime occur because man is inherently evil? Or because of socio-economic conditions? Or because of physical-mental illness? Or because of genetic, inherited defects? Or are there other factors or combinations of factors which are responsible?

White collar crime (E. Sutherland) ….the behaviour of persons of respectability and upper socio-economic class frequently exhibits all the essential attributes of crime but it is only very rarely dealt with as such. This situation emerges (Sutherland claims), from a tendency for systems of criminal justice in societies such as our own to favour certain economically and politically powerful groups and to disfavour others, notably the poor and the unskilled who comprise the bulk of the visible criminal population (Carson)

Edwin H. Sutherland White-collar criminality The economists are well acquainted with business methods but not accustomed to consider them from the point of view of crime. Many sociologists are well acquainted with crime, but not accustomed to consider it as expressed in business

The criminal statistics show unequivocally that crime, as popularly conceived and officially measured, has a high incidence in the lower class and a low incidence in the upper class. Crime is concentrated in the lower class, it is caused by poverty or by personal and social characteristics believed to be associated statistically with poverty, including feeblemindedness, psychopathic deviations, slum neighborhoods, and “deteriorated” families

The criminal behaviour of business and professional men “The robber barons” Colonel Vanderbilt asked: “You don’t suppose you can run a railroad in accordance with the statutes, do you?” A.B. Stickney, a railroad president, said to sixteen other railroad presidents in the home of J.P. Morgan in 1890 “I have the utmost respect for you gentlemen, individually, but as railroad presidents I wouldn’t trust you with my watch out of my sight” Charles Francis Adam said “The difficulty in railroad management ….. lies in covetousness, want of good faith, and low moral tone of railway managers, in the complete absence of any high standard of commercial honesty”

White collar criminality in business It is expressed most frequently in the form of misrepresentation in financial statements of corporations, manipulation in the stock exchange, commercial bribery, bribery of public officials directly or indirectly in order to secure favourable contracts and legislation, misrepresentation in advertising and salesmanship, embezzlement and misapplication of funds, short weights and measures and misgrading of commodities, tax frauds, misapplication of funds in receiverships and bankruptcies

The financial cost of white collar crime It is probably several times as great as the financial cost of all the crimes which are customarily regarded as “the crime problem”. An officer of a chain grocery store in one year embezzled $600,000, which was six times as much as the annual losses from five hundred burglaries and robberies of the stores in that chain. Public enemies numbered one to six secured $130,000 by burglary and robbery in 1938, while the sum stolen by Krueger is estimated at $250,000,000, or nearly two thousand times as much.

The New York Times in 1931 reported four cases of embezzlement in the United States with a loss of more than a million dollars each and a combined loss of nine million dollars. Although a million-dollar burglar or robber is practically unheard of, these million- dollar embezzlers are small-fry among white-collar criminals

The damage to social relations The financial loss from white-collar-crime, as great as it is, is less important than the damage to social relations. White collar crimes violate trust and therefore create distrust, which lowers social morale and produces social disorganization on a large scale

White collar crime is real crime The crucial question in this analysis is the criterion of violation of the criminal law. Conviction in the criminal court, which is sometimes suggested as the criterion, is not adequate because a large proportion of those who commit crimes are not convicted in criminal courts. This criterion, therefore, needs to be supplemented

The upper class has greater influence in moulding the criminal law and its administration to its own interests than does the lower class. The privileged position of white- collar criminals before the law results to a slight extent from bribery and political pressures, principally from the respect in which they are held and without special effort on their part. The most powerful group in medieval society secured relative immunity by “benefit of clergy” and now our most powerful groups secure relative immunity by “benefit of business or profession”.

White collar victims In contrast with the power of white collar criminals is the weakness of their victims. Consumers, investors, and stockholders are unorganized, lack technical knowledge, and cannot protect themselves. White collar criminality flourishes at points where powerful business and professional men come in contact with persons who are weak. In this respect, it is similar to stealing candy from a baby.

The theory that criminal behaviour in general is due either to poverty or to the psychopathic or sociopathic conditions associated with poverty can now be shown to be invalid for three reasons. First, the generalization is based on a biased sample which omits almost entirely the behaviour of white-collar criminals. The criminologists have restricted their data, for reasons of convenience and ignorance rather than of principle, largely to cases dealt with in criminal courts and juvenile courts, and these agencies are used principally for criminals from the lower economic strata

Second, the generalization that criminology is closely associated with poverty obviously does not apply to white-collar criminals. With a small number of exceptions, they are not in poverty, were not reared in slums or badly deteriorated families, and are not feebleminded or psychopathic

Third the conventional theories do not even explain lower class criminality. The sociopathic and psychopathic factors which have been emphasized doubtless have something to do with crime causation, but these factors have not been related to a general process which is found both in white-collar criminality and lower class criminality and therefore they do not explain the criminality of either class

Sutherland’s definition of white collar crime consists of four criteria:  A crime  committed by a person of respectability  of high social status  in the course of his/her occupation

A violation of trust Some commentators add “a violation of trust” to the definition of white collar crimes. A more useful distinction can be made between job-related crimes committed for the corporation (“corporate crimes”) and those committed against it (where the employer does not gain. This would include embezzlement and theft from the employer).

Corporate crime An illegal act of omission or commission, punishable by criminal sanction, which is committed by an individual or group of individuals in the course of their work as employees of a legitimate organization, and which is intended to contribute to the achievement of goals or other objectives thought to be important to the organization as a whole or some sub-unit within it, and which has serious physical or economic impact on employees, the general public, consumers, corporations, organizations and governments.

Characteristics of white collar crimes

Low visibility An essential feature of white-collar offences is that they take place under the cover of normal occupational routines (Shapiro, 1990), and involve the exploitation of occupational expertise or organizational system. They can therefore be readily disguised as ‘business offenders are legitimately present at the scene’ (Clarke, 1990). All of this means that victims are often unaware that any offence has been committed at all. In addition, offences are generally ‘private’ rather than public, leaving little visible evidence of their commission. This relative invisibility means that offences are peculiarly resistant to detection, and even when detected, are often not reported to public authorities.

Complexity  While many white-collar crimes can essentially be reduced to lying, cheating and stealing (Shapiro, 1990), many are extremely complex. The expertise which is being abused, which forms the basis of the offender’s occupational position, may be scientific, technological, financial or legal. Many are also highly organized, involve many employees, and may have been going on for several years. Organizational offences may involve a complex web of falsification, cover ups, action and inaction. Many of the regulations and laws which are being flouted are themselves exceedingly complex, making it difficult to determine exactly what offences have been committed and who is responsible for them.

Diffusion of responsibility In many organizations functions are separated and responsibilities delegated. Consequently, it is often difficult to determine who is immediately responsible for any offence

The diffusion of victimisation Victimization is also diffused. Whereas in many conventional offences individual identifiable offenders harm individual identifiable victims, in many white-collar offences there is no single identifiable victim. The victim may be an abstract entity such as the government or the company, or there may be many victims who suffer only a minimal loss

Detection and prosecution White-collar crimes are particularly difficult to detect by victims, supervisors or law enforcers. Enforcers must possess the same scientific and technical knowledge as perpetrators and it may take many weeks, months or even years of careful investigation to unravel the more complex offences

Lenient sanctions Even when prosecuted, it is often argued that white-collar offenders are not dealt with severely. Few offenders are sent to prison and the vast majority are fined amounts which are often described as “derisory”

Ambiguous law The nature of offences creates many legal problems. Their complexity means that it is often difficult to capture the essence of offences in legislation and to specify precisely the situations in which an offence has been committed, leaving many loopholes to be exploited.

References:  Katherine S. Williams, Textbook on Criminology, Oxford University Press, 2004  Edwin H. Sutherland, White-Collar-Criminality, American Sociological Review, 1940