Academic journal article
By Gallo, John N.
Journal of Criminal Law and Criminology , Vol. 88, No. 4
In their article Asymmetrical Causation and Criminal Desistance, Christopher Uggen and Irving Piliavin discuss "devising theoretically relevant interventions."(1) As a white-collar criminal defense attorney and a former federal prosecutor, I have been asked for my personal perspective on what law-enforcement techniques, a type of "relevant interventions," have been effective in reducing crime. Given my background, it seems I am most qualified to comment on that question from the perspective of law-enforcement, and in particular from the vantage point of federal law-enforcement. Viewed from this perspective, the question I address in this article is whether federal lawenforcement has played a significant role in reducing crime and, if so, what law-enforcement techniques have been effective in that regard?
In summary, my experience has been that law-enforcement has had an impact in deterring and/or reducing criminal activity, but that the type of deterrence generally varies depending on the nature of the criminal activity. Specifically, in the case of white-collar crime, where the actors are generally rational, informed individuals, enforcement of criminal laws generally deters additional criminal conduct of the kind at issue; in other words, the prosecution of one will deter others from committing similar criminal conduct. On the other hand, in the case of violent crime, the prosecution of an individual is far less likely to deter others from engaging in the same criminal conduct, either because such actors do not act rationally or because they are unaware of the punishment for their conduct. At times, prosecution of violent offenders may individually deter criminal conduct, that is, prevent the same individual from committing similar acts again. Some violent offenders, however, if given the opportunity, will repeat their criminal conduct regardless of how many times they are prosecuted. In these cases, the only effective law-enforcement tool is incapacitation of that individual, usually through incarceration.
These principles, if validated, have significant implications for the way our society allocates its law-enforcement resources and for the way it punishes criminal offenders. In particular, in the case of white-collar offenses, law-enforcement is most effective and efficient if it targets particular types of criminal conduct and publicizes prosecutions. For violent offenders, on the other hand, law-enforcement will by necessity be generally more reactive; in this case, however, once society prosecutes an individual, it is vital that society aggressively supervise (including drug test) that individual as part of some probationary sentence served after any period of incarceration. Finally, in the case of corrupt, violent organizations, law-enforcement is most effective if it targets for prosecution the leaders of those organizations, causes their long-term incapacitation, then identifies and targets their successors.
I. WHITE COLLAR CRIME
For purposes of this commentary, "white collar crime" refers to non-violent criminal offenses committed in an institutional or commercial context.(2) Examples include fraud of all kinds (including wire, mail, and bank fraud), public corruption, commercial bribery (including payment or receipt of kickbacks), antitrust violations, and environmental offenses. White-collar offenders generally are motivated by profit, and are usually rational, informed actors who will assess the risks versus the benefits of engaging in criminal conduct. As further discussed in the examples below, white-collar crime is more prevalent in areas where law-enforcement has not devoted resources or has not been effective. When, however, law-enforcement is effective in enforcing the criminal laws against a small number in a whitecollar area, oftentimes the result is that the larger group in that area conform their conduct to the law.
To highlight this principle, what follows are a series of examples of white-collar prosecutions and a discussion of the observed impact of the same on the conduct of those in the affected area. …