Monday, November 15, 2004
A recent report for The Heritage Foundation by Professor John S. Baker, Jr. (LSU), entitled "The Sociological Origins of White Collar Crime," raises questions about the definition--or lack thereof--of what constitutes a "white collar crime." Regarding the scope of what now comes under the definition of white collar crime, Professor Baker points out:
Are millions of middle-class Americans really white-collar criminals? The unauthorized importation of prescription drugs from a foreign country is a federal crime. So is "sharing" copyrighted material without permission. Assisting someone in the commission of a federal crime is also a federal crime. Countless American seniors purchase prescription drugs from Mexican and Canadian pharmacies. Millions of Americans, including teens using family computers, share copyrighted music without paying for it.
According to the Department of Justice, "White-collar offenses shall constitute those classes of non-violent illegal activities which principally involve traditional notions of deceit, deception, concealment, manipulation, breach of trust, subterfuge or illegal circumvention." Under that definition, the illegal purchase of prescriptions and music pirating clearly qualify. The Justice Department has recently promoted the idea that enforcement of federal crimes should be uniform. Nevertheless, it is highly unlikely that federal prosecutors will hand down millions (or any) indictments of seniors, parents, and children for these crimes.
Despite the rhetoric, the decision to prosecute is unavoidably discretionary. How do prosecutors determine whom to prosecute? All too often, the choice reflects contemporary politics--and today's criminal du jour is the "white-collar" crook. Yet when most people talk about vigorously prosecuting white-collar crime, they don't mean locking up those who purchase medicine from neighboring countries or pirate music over the Internet, despite the fact that such crimes defraud pharmaceutical and music corporations (and thus their shareholders) of billions of dollars.
Professor Baker questions the definition of white collar crime offered by Edwin Sutherland, widely considered to be the first scholar in the area. In the conclusion to his report, Professor Baker writes:
The origin of the "white-collar crime" concept derives from a socialist, anti-business viewpoint that defines the term by the class of those it stigmatizes. In coining the phrase, Sutherland initiated a political movement within the legal system. This meddling in the law perverts the justice system into a mere tool for achieving narrow political ends. As the movement expands today, those who champion it would be wise to recall its origins. For those origins reflect contemporary misuses made of criminal law--the criminalization of productive social and economic conduct, not because of its wrongful nature but, ultimately, because of fidelity to a long-discredited class-based view of society.
The report is provocative, and Professor Baker is one of the leading critics of the federalization of the criminal law. (ph)