Introduction: Examining White Collar Crime with Trifocals

By Podgor, Ellen S. | Fordham Urban Law Journal, December 2011 | Go to article overview

Introduction: Examining White Collar Crime with Trifocals


Podgor, Ellen S., Fordham Urban Law Journal


  I. Legislative Drafting
 II. The Ubiquitous Nature of White Collar Crime
III. Public Perception
 IV. Trifocals

"White collar crime," a term coined by sociologist Edwin Sutherland in 1939, (1) is one of the hottest legal topics in the news. (2) One finds discussion in the media of cases of corporate criminal liability, (3) financial fraud, (4) ponzi schemes, (5) environmental crimes, (6) public corruption, (7) and a host of other non-violent economic criminal acts. (8) Large law firms that once shied away from representing criminal matters, or buried them within the firm under titles like "special matters," now advertise their skill and expertise in handling corporate and individual clients facing possible indictment. (9) Whether it is the Savings and Loan fiasco, (10) the Enron debacle, (11) or more recently the financial fraud crisis, (12) legislation and prosecution of white collar crime is a subject of growing concern. (13)

Yet, despite the growing use of the term "white collar crime," statistical monitoring of this form of criminality proves challenging. Bureau of Justice statistical reporting does not have a designated category called white collar crime. Many offenses, such as embezzlement, fraud, and forgery, come under property crimes. (14) But one also finds public-order offenses and a category called "other" that houses some crimes that appear to be what a lay person would perceive as white collar offenses. (15) For example, newer offenses such as cybercrime and identity theft are often found as distinct categories for statistical reporting. (16)

The difficulties encompassed in reporting and categorizing crimes as pertaining to white collar ones can be seen by examining crimes prosecuted under the Racketeer Influenced and Corrupt Organization Act ("RICO"). (17) The RICO Act presents unique issues for categorization as the statutes allow for conduct that clearly falls within street crimes, while also providing a basis for many white collar prosecutions. (18) When a RICO case involves organized crime killings, it is easy to say that this is not white collar crime. Yet, when the RICO predicate is mail fraud, (19) or involves public corruption activities, the white collar category may seem well suited.

Who should prosecute this form of criminality is also uncertain. What was once limited to the federal arena, has now moved beyond United States Attorneys' Offices and the Manhattan District Attorney's Office, with local entities and states now prosecuting white collar crimes. (20) Prosecutions are also not limited to conduct within the United States. For example, on the federal level, one finds the prosecution of international activities with statutes such as the Foreign Corrupt Practices Act, (21) a crime of bribery that fits neatly within the white collar rubric.

Also noteworthy in demonstrating the huge terrain covered by white collar criminality is the fact that it is common to see celebrities as the subject of a white collar crime prosecution. Parading celebrity cases before the media offers a front-page advertisement for general and specific deterrence. (22)

It is obvious from this preview that the study of white collar crime covers a vast breadth of conduct, people, places, and forms of criminality. The wealth of available material related to white collar crime, therefore, makes this symposium particularly important. Clearly, many different and important topics could and should be considered in reflecting on white collar crime.

The Articles by the six authors in this Book highlight three important and consistent themes relevant to white collar crime. First is that there are many challenges faced in the legislative drafting of white collar crime statutes. (23) Second is that when one studies white collar crime, it is important to think beyond the courtroom and even beyond the United States. (24) Finally, public perception plays a crucial role in white collar crime discussions. …

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