We are accustomed to thinking of "crime" as involving the most blameworthy and antisocial sorts of conduct in which citizens can engage, conduct that is clearly and unambiguously more wrongful than conduct that is not criminal. But the reality is more complex, especially when we look at certain kinds of "white collar" behavior. One of us (Green) has previously undertaken an in-depth investigation of the underlying moral concepts that distinguish white collar crime from "merely aggressive behavior." (1) This work attempted to differentiate, for example, between criminal fraud and "sharp dealing," insider trading and "savvy investing," bribery and "horse trading," tax evasion and "tax avoidance," extortion and "hard bargaining," witness tampering and "witness preparation," and perjury and "wiliness on the witness stand." (2)
Such analysis often depended on fairly fine-grained distinctions in moral reasoning. The problem is that the ability of criminal law to stigmatize, to achieve legitimacy, and to gain compliance ultimately depends on the extent to which it enjoys moral credibility and recognition in the broader lay community. (3) If legally significant distinctions between fraud and non-fraud--or perjury and non-perjury--can be discerned only through abstract philosophical reasoning, it is reasonable to wonder whether the public will lend these distinctions the moral weight required for the law to be effective and legitimate.
This paper seeks to determine the extent to which the lay public's moral intuitions parallel the law in distinguishing between white collar crime and related non-crime by focusing on three domains of conduct: (1) bribery and gratuities; (2) perjury and false statements; and (3) fraud. These types of conduct are of practical significance and reflect the kind of moral ambiguity that is characteristic of white collar crime. This paper examines each category to determine where the lay public would draw the line between criminality and non-criminality; and, where such conduct is regarded as criminal, how it would be graded. The analysis aims to identify the extent to which public perceptions are consistent or inconsistent with current law.
Our studies found that lay persons, in general, are comfortable making fairly fine-grained distinctions regarding the law of white collar crime. In some cases, the distinctions made by out respondents were consistent with current law; this should lend weight to the view that the law in these areas draws distinctions in the appropriate places. Participants in the fraud study, for example, were comfortable distinguishing between misrepresentations that went to the heart of the bargain and those that were extraneous. Elsewhere, however, we found significant divergence between the views of our lay subjects and current law. In the case of perjury, for example, lay participants were less likely than the law to distinguish between lying in court under oath and lying to police while not under oath, and between literally false statements and literally true but misleading statements. Similarly, with respect to bribery, participants' views diverged significantly from current law. For example, respondents sought to criminalize both commercial bribery and payments accepted by an office-holder in return for performing a non-official act, despite the fact that neither form of conduct is a crime under current American federal law.
PREVIOUS STUDIES OF COMMUNITY ATTITUDES REGARDING WHITE COLLAR CRIME
It is often said that those who commit white collar crimes are subject to less severe punishments than those who commit street offenses. (4) The usual implication seems to be that such disparities are somehow unjust. (5) But, on reflection, it should be clear that treating a white collar crime less severely than a street crime would be unjust only if the white collar crime in question was no less blameworthy than the corresponding street crime. …