Trusted Criminals. White Collar Crime in Contemporary Society FOURTH EDITION. DAVID O. FRIEDRICHS University of Scranton

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2 Trusted Criminals White Collar Crime in Contemporary Society FOURTH EDITION DAVID O. FRIEDRICHS University of Scranton Australia Brazil Japan Korea Mexico Singapore Spain United Kingdom United States

3 Trusted Criminals: White Collar Crime in Contemporary Society, 4th Edition David O. Friedrichs Acquisitions Editor: Carolyn Henderson Meier Assistant Editor: Megan Power Editorial Assistant: John Chell Media Editor: Andy Yap Marketing Manager: Michelle Williams Marketing Assistant: Jillian Myers Marketing Communications Manager: Tami Strang Content Project Manager: Pre-Press PMG Art Director: Maria Epes Print Buyer: Karen Hunt Rights Acquisitions Account Manager, Text: Mardell Glinski Schultz Rights Acquisitions Account Manager, Image: John Hill Production Service: Pre-Press PMG Cover Designer: RHDG/Angelyn Navasca Cover Image: Image Source 2010 Wadsworth Cengage Learning ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced, transmitted, stored, or used in any form or by any means graphic, electronic, or mechanical, including but not limited to photocopying, recording, scanning, digitizing, taping, Web distribution, information networks, or information storage and retrieval systems, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without the prior written permission of the publisher. For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, For permission to use material from this text or product, submit all requests online at Further permissions questions can be ed to Library of Congress Control Number: ISBN-13: ISBN-10: Wadsworth 10 Davis Drive Belmont, CA USA Cengage Learning is a leading provider of customized learning solutions with office locations around the globe, including Singapore, the United Kingdom, Australia, Mexico, Brazil, and Japan. Locate your local office at Cengage Learning products are represented in Canada by Nelson Education, Ltd. To learn more about Wadsworth, visit Purchase any of our products at your local college store or at our preferred online store Printed in the United States of America

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5 About the Author David O. Friedrichs is Distinguished Professor of Sociology/Criminal Justice as of 9/09 at the University of Scranton. He was educated at New York University and taught for nine years at City University of New York (Staten Island). In addition to Trusted Criminals, he is the author of Law in Our Lives: An Introduction (Roxbury 2001, 2006) and editor of State Crime, Volumes I and II (Ashgate/Dartmouth 1998). He has published well over 100 journal articles, book chapters, encyclopedia entries, and essays on such topics as the legitimation of legal order, radical/critical criminology, violence, narrative jurisprudence, postmodernism, crimes of states, globalization and crime, and white collar crime. He is also the author of more then 300 published book reviews. He served as editor of the Legal Studies Forum between 1985 and He has been active with numerous professional associations and has chaired or served on the committees of a number of these associations. He currently serves on the editorial boards of eight journals. He has been a visiting professor or guest lecturer at a number of colleges and universities, including Ohio University (as Rufus Putnam Visiting Professor), the University of South Africa, Hebrew University (Israel), and Flinders University (Australia). He has served as president of the White Collar Crime Research Consortium ( ) and received the Lifetime Achievement Award of the Division on Critical Criminology of the American Society of Criminology in iv

6 Brief Contents 1 The Discovery of White Collar Crime 1 2 Studying White Collar Crime and Assessing Its Costs 34 3 Corporate Crime 60 4 Occupational Crime and Avocational Crime 96 5 Governmental Crime: State Crime and Political White Collar Crime State-Corporate Crime, Crimes of Globalization, and Finance Crime Enterprise Crime, Contrepreneurial Crime, and Technocrime Explaining White Collar Crime Theories and Accounts Law and the Social Control of White Collar Crime Policing and Regulating White Collar Crime Prosecuting, Defending, and Adjudicating White Collar Crime Responding to the Challenge of White Collar Crime 345 v

7 Contents FOREWORD xix PREFACE xxi 1 The Discovery of White Collar Crime 1 Edwin H. Sutherland and the Discovery of White Collar Crime 2 Box 1.1 E. H. Sutherland: The Father of White Collar Crime Studies 3 Box 1.2 The Meaning of White Collar Crime: Some Issues under Debate 5 Defining White Collar Crime 5 A Multistage Approach to Defining White Collar Crime 6 Social Harm and White Collar Crime 8 Trust and White Collar Crime 9 Respectability and White Collar Crime 10 Risk and White Collar Crime 11 Comparing White Collar and Conventional Crime Offenders 13 Age 13 Class 13 Box 1.3 Cross-Cultural and International Dimensions of White Collar Crime 14 Race 15 Gender 16 Other Demographic Variables and Differences 16 Criminal Careers 16 The Social Movement against White Collar Crime 17 vi

8 CONTENTS vii Images of White Collar Crime: The Role of the Media 18 Box 1.4 The National White Collar Crime Center 19 Exposing White Collar Crime 20 Informers and Whistleblowers 20 Box 1.5 The Media as Entertainment: White Collar Crime in Films and on TV 21 Box 1.6 Whistleblower or White Collar Criminal? 23 Muckrakers and Investigative Reporters 25 The Consumer Movement, Public Interest Groups, and Labor Unions 28 Box 1.7 The Internet, Blogs, and White Collar Crime 29 Box 1.8 Ralph Nader and the Consumer Movement 30 The Role of Politicians and Political Institutions 30 Criminal Justice Professionals and Academics (Including Criminologists) 32 Discovering White Collar Crime, in Sum 32 Key Terms 32 Discussion Questions 33 2 Studying White Collar Crime and Assessing Its Costs 34 Underlying Assumptions and Different Perspectives 35 Specific Challenges in the Study of White Collar Crime 35 The Complex Nature of White Collar Crime 36 Gaining Access for Research 36 Obtaining Statistics 36 Obtaining Research Support 37 Research Methods for Studying White Collar Crime 37 Box 2.1 A Case Study: The Revco Medicaid Fraud Case 38 Scholarly Research and White Collar Crime 38 Case Studies 38 Experiments 39 Surveys 40 Box 2.2 Designing a White Collar Crime Survey: Some Challenges 41 Observational Research 41 Secondary Data Analysis and Event History Analysis 41 Archival Data Analysis and Historical Ethnography 42 Content Analysis 43 Comparative Studies of White Collar Crime 43 Students Role as Researchers 43 Box 2.3 Public Perception of White Collar Crime: How Serious Is It? 44 Measuring White Collar Crime: How Prevalent Is It? 44 Box 2.4 Conventional Crime and White Collar Crime Rates 46

9 viii CONTENTS Victimization Surveys and Self-Report Studies 47 Box 2.5 Measuring Specific Forms of White Collar Crime 48 The Need for Reliable Data 48 The Costs and Consequences of White Collar Crime 49 Direct Costs 49 Indirect Costs 51 Physical Costs 52 Other Costs 52 Victims of White Collar Crime 53 Box 2.6 Women as a Special Class of Victims of White Collar Crime 54 The Role of the Victim 55 Box 2.7 Organizations as Victims of White Collar Crime 56 Specific Forms of Suffering of White Collar Crime Victims 56 Box 2.8 Psychological Consequences of Fraud Victimization 58 Studying White Collar Crime and Assessing Its Costs, in Sum 58 Key Terms 59 Discussion Questions 59 3 Corporate Crime 60 The Historical Development of the Corporation and Corporate Crime 60 The Corporation in Modern Society 61 Box 3.1 It s Legal but It Ain t Right 63 A Typology of Corporate Crime 64 Corporate Violence 65 Corporate Violence against the Public: Unsafe Environmental Practices 65 Box 3.2 The Exxon Valdez and Prince William Sound 67 Corporate Violence against Consumers: Unsafe Products 68 Box 3.3 Corporate Destruction of a Community 69 Box 3.4 The Ford Pinto Case 72 Corporate Violence against Workers: Unsafe Working Conditions 73 Box 3.5 The Production and Sale of Tobacco: Corporate Crime? 74 Box 3.6 Asbestos and the Manville Corporation 75 Box 3.7 The Film Recovery Systems Case 76 Corporate Abuse of Power, Fraud, and Economic Exploitation 77 Crimes against Citizens and Taxpayers: Defrauding the Government and Corporate Tax Evasion 77 Box 3.8 Halliburton, Vice President Cheney, and Iraq War Contracts 78

10 CONTENTS ix Crimes against Consumers: Price Fixing, Price Gouging, False Advertising, and Misrepresentation of Products 81 Crimes against Employees: Economic Exploitation, Corporate Theft, Unfair Labor Practices, and Surveillance of Employees 83 Box 3.9 The Enron Case and the Devastation of Employee Retirement Accounts 85 Crimes against Franchisees and Suppliers: Discount and Chargeback Frauds 85 Crimes against Competitors: Monopolistic Practices and Theft of Trade Secrets 86 Crimes against Owners and Creditors: Managerial Accounting Fraud, Self-Dealing, and Strategic Bankruptcy 87 Box 3.10 The Case against Microsoft 88 Box 3.11 Adelphia, HealthSouth, WorldCom, and Accounting Fraud 90 Are Universities and Colleges Corporate Criminals? 91 Box 3.12 Student Loan Industry and Fraudulent Conduct 93 Corporate Crime, in Sum 94 Key Terms 94 Discussion Questions 94 4 Occupational Crime and Avocational Crime 96 Crimes by Small Businesses: Retail Crime and Service Fraud 97 Retail Crime 98 Box 4.1 Occupational Crime as Violence: Drug Dilution, Fake Asbestos Removal and Crane Collapses 99 Defrauding Vulnerable People 99 Service Business Fraud 100 Crimes by Professionals: Medical, Legal, Academic, and Religious Crime 101 Medical Crime 102 Legal Crime 105 Box 4.2 Lawyers and the Abuse of Political Power 107 Academic Crime: Professors, Scientists, and Students 107 Box 4.3 Plagiarist or Hate Crime Victim? 108 Box 4.4 Student Loan Officials and Conflicts of Interest 109 Religious Crime 113 Employee Crime 114 Box 4.5 Exorbitant Executive Compensation: Just Reward or Grand Theft? 115 Forms of Employee Theft 116 Box 4.6 Embezzling from Charities and Non-Profit Institutions 117 Employers Responses to Employee Theft 117

11 x CONTENTS Box 4.7 Union Leaders Who Steal from Their Union Members 118 Alternative Forms of Employee Crime 118 Some Factors in Employee Theft 119 Box 4.8 Donkeys, Wolfpacks, Vultures, and Hawks: A Typology of Employee Theft 120 Conditions in the Workplace and Employee Crime 120 Avocational Crime and White Collar Crime 121 Income Tax Evasion 121 Box 4.9 Actor Wesley Snipes and a Tax Evasion Case 123 Other Forms of Avocational Crime 124 Occupational and Avocational Crime, in Sum 124 Key Terms 125 Discussion Questions Governmental Crime: State Crime and Political White Collar Crime 127 Governmental Crime: Some Basic Terms 129 Governmental Criminality on an Epic Scale 130 The Vietnam War 131 Box 5.1 The Threat of Nuclear War as Crime and Other Weapons of Mass Destruction 132 U.S. Military Activity in the New World Order 132 Forms of State Criminality 133 The Criminal State 133 Box 5.2 The Perception of the United States as a Criminal State, and President George W. Bush as a State Criminal 134 The Repressive State 136 Box 5.3 Suharto and the Looting of Indonesia 138 The Corrupt State 138 State Negligence 139 State-Organized Crime 141 The White House and State-Organized Crime 142 Box 5.4 The Watergate Affair 143 State-Organized Crime and Federal Investigative Agencies 144 Police Crime 146 Political White Collar Crime 147 Political System Corruption 147 Corruption in the Electoral Financing Process 147 Political White Collar Crime in the Executive Branch 148 Box 5.5 The Corrupt Firing of U.S. Prosecutors 151 Political White Collar Crime in the Legislative Branch 153 Political White Collar Crime in the Judicial Branch 154

12 CONTENTS xi Governmental Crime, in Sum 155 Box 5.6 Police Corruption as a Form of Political White Collar Crime 156 Key Terms 157 Discussion Questions State-Corporate Crime, Crimes of Globalization, and Finance Crime 159 State-Corporate Crime 159 Box 6.1 State-Corporate Crime, Nazi Germany, and the Holocaust 160 Crimes of Globalization 162 Box 6.2 Private Mercenaries and Military Contractors in Iraq; Operation Iraqi Freedom as Theft on a Grand Scale 163 Box 6.3 Economic Hit Men and Crimes of Globalization 164 Box 6.4 Sweatshops in Developing Countries: Criminal Enterprises or Economic Opportunities? 165 The Role of the World Bank in a Global Economy 165 The World Bank and Crimes of Globalization 166 Box 6.5 The Dam at Pak Moon: A Case of Global Crime by Jessica Friedrichs 167 Finance Crime 168 Banking/Thrifts Crime: The Savings and Loan Mess 169 Box 6.6 Frauds and the Collapse of the Subprime Mortgage Loan Market 172 Box 6.7 Investment Banks: Wealth Producers or Large-Scale Fraudsters? 174 Box 6.8 The Charles Keating Case 177 Box 6.9 The BCCI Case 178 Insider Trading 178 Finance Crime and Financial Markets 183 Box 6.10 Short Sellers Who Spread False Rumors: Worse than Inside Traders? 184 Box 6.11 Fraudulent Conduct in the Mutual Funds and Hedge Funds Industries 185 Box 6.12 The Title Insurance Industry and a Rigged Market 189 Hybrid White Collar Crime, in Sum 189 Key Terms 190 Discussion Questions Enterprise Crime, Contrepreneurial Crime, and Technocrime 192 Enterprise crime: Organized crime and White Collar Crime 192 The Relation between Governmental Crime and Syndicated Crime 194

13 xii CONTENTS Historical Roots of Organized Crime 195 Box 7.1 Joe Valachi of La Cosa Nostra and Carl Kotchian of Lockheed 196 The Relation between Syndicated Crime and White Collar Crime 196 Box 7.2 Arson as a Form of Enterprise Crime 198 Hazardous Waste Disposal 198 The Relation between Syndicated Crime and Finance Crime 198 Box 7.3 From Street Thug to Equity Markets Fraudster 199 Contrepreneurial Crime: Professional Criminals and White Collar Crime 200 Historical Origins of Professional Crime 200 The Relation between Professional Crime and White Collar Crime 200 Box 7.4 Joseph Yellow Kid Weil and the Big Con 201 Box 7.5 The Fence 202 Fraudulent Businesses: Swindles, Scams, and Rackets 202 Fraud 202 Box 7.6 Fraud in the World of Art and Antiquities 203 Box 7.7 Advance Fee Frauds 205 Box 7.8 Charity as Fraud 206 Box 7.9 Jordan Belfort and the Stratton Oakmont Penny Stock Fraud 207 Box 7.10 When Fraud Leads to Violence 211 Technocrime, Including Computer Crime 211 Technocrime Defined 212 Computer Crime 212 Box 7.11 Identity Theft as White Collar Crime 214 The Law and Computer Crime 215 The Pursuit of Computer Crime Cases 216 Other Types of Technocrime 216 Enterprise Crime, Contrepreneurial Crime, and Technocrime, in Sum 217 Key Terms 218 Discussion Questions Explaining White Collar Crime Theories and Accounts 219 Underlying Assumptions and Points of Departure 220 What Do We Want to Explain? 220 Explaining White Collar Criminality 221 The Biogenetic Explanation 221 Box 8.1 The Demonic Explanation 222

14 CONTENTS xiii Psychological Explanations 222 Box 8.2 Mental Illness, Drug Addiction, and Intellectual Aptitude: Factors in White Collar Crime? 225 Sociogenic Explanations 225 Box 8.3 White Collar Delinquency 226 Organizational Criminality and the Crimes of Organizations 226 Organizational Responsibility 226 The Various Dimensions of Organizational Criminality 228 Box 8.4 Is Money the Cause of White Collar Crime? 231 Explaining White Collar Crime: Theories and Perspectives 231 General Theories of Crime and White Collar Crime Theory 231 Box 8.5 Low Self-Control and White Collar Crime 232 Classical Criminology and Rational Choice 233 Alternative Dimensions of Crime and Choice 234 Social Control and Bonds 234 Control Balance and Control Fraud Theories 234 Box 8.6 The Generative Worlds, the Lure, and the Sensual Attractions of White Collar Crime 235 Social Process and Learning 235 Interactionism and Labeling 236 Box 8.7 The Presentation of Self and White Collar Crime 237 Neutralizations, Rationalizations, and Accounts 237 Structural Strain and the Structure of Opportunity 238 Conflict Theory and Criminogenic Societies 239 The Structure of Contemporary Capitalist Society and White Collar Crime 240 Box 8.8 Economic Wilding, Capitalism, and White Collar Crime 241 Radical and Critical Perspectives on White Collar Crime 241 Box 8.9 White Collar Crime in a Postmodern World 242 Explaining Criminalization and White Collar Crime 243 Integrated Theories of White Collar Crime 244 Box 8.10 An Integrated Theoretical Approach to State-Corporate Crime, and Crimes of States 245 An Integrated, Multilevel Approach to Understanding the Subprime Mortgage Loan Frauds 245 The Subprime Mortgage Market Frauds: Applying an Integrated Theoretical Approach 245 Explaining White Collar Crime, in Sum 247 Key Terms 248 Discussion Questions 248

15 xiv CONTENTS 9 Law and the Social Control of White Collar Crime 250 Social Control and White Collar Crime 250 Formal Law and White Collar Crime 251 The Historical Origins of White Collar Crime Laws 252 Box 9.1 The Carrier s Case and the Law of Employee Theft 253 Contemporary Legislative Lawmaking and White Collar Crime 254 The Influence of Business on the Lawmaking Process 254 Box 9.2 The Dialectical Perspective on Lawmaking 255 Box 9.3 Bailout Legislation as Save-the-Economy Measures or Save Wall Street Crooks Measures 256 Box 9.4 The Sarbanes-Oxley Act, and the Backlash Against It 258 Alternative Sources and Forms of Law and Lawmaking 258 The Constitution and Constitutional Law 258 Case Law 259 Executive Lawmaking 260 Administrative Law 261 A Selective Review of Substantive White Collar Crime Lawmaking 262 Antitrust Law 262 Occupational Safety and Health Laws 264 Box 9.5 The Foreign Corrupt Practices Act: Effective Law to Combat Global White Collar Crime or Economically Harmful and Ineffective Law? 265 Environmental Protection Laws 265 The RICO Law 267 Box 9.6 White Collar Crime Law and the Legal Curriculum 268 Civil and Criminal Law and White Collar Crime 268 Law, Corporations, and the Concept of Criminal Liability 269 Box 9.7 Law Professor Stuart Green and the Moral Theory of White Collar Crime 270 Corporate Criminal Liability 270 Box 9.8 A Comparative Perspective on Corporate Criminal Responsibility 271 Corporate Personhood and Corporate Decision Making 273 Box 9.9 Proposed Colorado Ballot Measure on Corporate Fraud 274 Law and the Social Control of White Collar Crime, in Sum 275 Key Terms 275 Discussion Questions 275

16 CONTENTS xv 10 Policing and Regulating White Collar Crime 277 Criminal Justice System Policing: Law Enforcement 277 State and Federal Enforcement Agencies 278 The FBI 279 The Inspectors General 280 The U.S. Postal Inspection Service 281 The U.S. Secret Service, U.S. Customs Service, and U.S. Marshals Service 281 The Internal Revenue Service s Criminal Investigative Division 282 The Regulatory System Response 283 The Origins and Evolution of Regulation 284 The Creation and Operation of Federal Regulatory Agencies 285 Box 10.1 The Contemporary Debate on Regulation 286 The Regulatory Agency s Philosophy: Compliance versus Deterrence 287 Criticisms of Regulatory Agencies 289 Other Factors in Regulatory Response 290 Prominent Regulatory Agencies and Their Functions 290 Box 10.2 The Role of Regulation in Relation to the Global Economic Crisis 291 Box 10.3 Agency Capture 292 Box 10.4 The SEC in Recent Years, and the Financial Crisis of Box 10.5 Protecting the Environment: Alternatives to Relying Upon the EPA 296 Private Policing 297 Box 10.6 Forensic Accountants as Fraud Detectives 299 The Role of Lawyers and Accountants in Policing White Collar Crime 299 Lawyers and Professional Ethics 300 Accountants and Auditing Responsibilities 302 Self-Regulation: Internal Controls and Professional Associations 303 Box 10.7 Credit Rating Agencies as a Failed Policing Entity 304 Box 10.8 The Role of Corporate Boards in Self-Regulation 305 Self-Regulation in Financial Firms 305 Self-Regulation and the Professions 306 Policing and Regulating White Collar Crime, in Sum 307 Key Terms 308 Discussion Questions 308

17 xvi CONTENTS 11 Prosecuting, Defending, and Adjudicating White Collar Crime 309 Prosecution at the Local, State, and Federal Levels 310 Local Prosecutors 310 Box 11.1 The Pinto Case: Prosecuting the Ford Motor Company 312 State Attorney Generals 312 Box 11.2 New York Attorney Generals and Wall Street Crime 313 Federal Prosecutors 313 Box 11.3 Deferred Prosecution Agreements and Lawyer Client Privilege Waivers 315 The Prosecution of Antitrust Cases 316 The Prosecution of Environmental Crime 316 Box 11.4 Prosecutorial Initiatives in Response to the Financial Crisis of Special Prosecutors (Independent Counsel) 318 The Role of the Grand Jury in White Collar Crime Cases 319 Defending White Collar Criminals 319 Box 11.5 Perp Walks for White Collar Crime Defendants 320 Box 11.6 To Testify or Not to Testify 322 Adjudicating White Collar Crime: Plea Bargaining and Trial 324 Box 11.7 The Enron Trial of Kenneth Lay and Jeffrey Skilling 325 The Role of the Trial Jury 326 Box 11.8 Punitive Damages, the U.S. Supreme Court, and the Role of Juries 327 Box 11.9 Reversal of Arthur Andersen Conviction Due to Jury Charge by Judge 328 Judges and the Sentencing of White Collar Criminals 328 Sentencing 329 Explaining Disparities in Sentences for White Collar Offenders 330 Sentencing Organizational Offenders 332 Sentencing Guidelines and White Collar Offenders 333 White Collar Criminals in the Correctional System 335 Box House Arrest as Punishment 337 Civil Suits 337 Box Plaintiffs Lawyers as Heroes and as Villains 339 Box The Role of Mediators and Arbitrators in the Settlement of Complaints 340 Citizen Suits and Class Action Suits 341 Collateral Civil Suits 342

18 CONTENTS xvii Prosecuting and Adjudicating White Collar Crime, in Sum 343 Key Terms 343 Discussion Questions Responding to the Challenge of White Collar Crime 345 Raising Consciousness about White Collar Crime 346 Policy Options for Responding to White Collar Crime 346 Responding to White Collar Crime as a Moral Issue 347 Box 12.1 Do Moral Appeals Work? 348 Business Ethics Courses in the Curriculum 348 Business Ethics within the Business World 349 Securing Compliance and Sanctioning White Collar Crime 350 Box 12.2 Corporate Human Rights Obligations and Corporate Social Responsibility: Promotion of Ethical Corporations or Simply Good Public Relations? 351 Law and the Coercive Response to White Collar Crime 352 Box 12.3 Shaming as a Response to White Collar Crime 353 Civil Suits and Penalties 353 Compliance versus Punitive Approaches to Corporate Crime 354 Deterrence and White Collar Crime 355 Box 12.4 Retribution and Just Deserts for Corporate Crime 356 Box 12.5 Scared Straight for Potential White Collar Criminals? 358 Rehabilitation, Probation, and Enforced Self-Regulation 358 Probation 359 Enforced Self-Regulation 359 Fines, Restitution, and Community Service 360 Sentencing Guidelines for Fines 361 Restitution 362 Community Service 362 Occupational Disqualification 362 Box 12.6 Contractual Disqualification for Corporations 363 Incarceration 363 Organizational Reform and Corporate Dissolution 364 Box 12.7 Citizen Works Proposals for Cracking Down on Corporate Crime 365 Box 12.8 Scandinavian Countries Initiatives Against White Collar Crime 366 Responding to Residual Forms of White Collar Crime 367 Controlling Governmental Crime 367 Box 12.9 Responding to White Collar Crime Internationally 368

19 xviii CONTENTS Structural Transformation as a Response to White Collar Crime 368 Responding to the Challenge of White Collar Crime, in Sum 369 A Concluding Note: Trusted Criminals and White Collar Crime in the 21st Century 370 Key Terms 371 Discussion Questions 371 REFERENCES 372 NAME INDEX 430 SUBJECT INDEX 446

20 Foreword One of the most well-established facts in criminology is the age crime curve, which holds that younger people commit more crimes than older people and that, as criminally active young people begin to age, their level of criminality begins to wane. The age crime curve explains a great deal about what we ordinarily think of as the subject matter of criminology: young and sometimes violent males. The age crime curve explains why it does not surprise us to see our prisons filled with young adults, because we have come to expect that crime is a matter of youth. And for the most part, this is not a false idea. But when it comes to white collar crime, a different notion emerges. For this kind of crime requires access to sources of significant money, especially through business, and it denotes the existence of a foundation of trust that is used to make the crime possible. Neither of these requirements access and trust seem to go with youth very well. It may take a few years in the business community to obtain access to the kinds of accounts that make really successful white collar crime lucrative, and it takes some years of work to generate the kind of trust that makes white collar crime possible. The people who defrauded so many in the case of Enron were middle-aged, older citizens of repute as were the people from WorldCom who bankrupted that company. They had been active in business for long enough to gain reputations of some significance, and they had the kind of leverage that meant they could move large amounts of cash and credit on the strength of their signature. White collar crime, then, is different from the kinds of crime that we usually study, for the ordinary rules do not seem to apply so well. Most white collar offenders are not kids; they are adults with years of experience in the world that they violate. Most white collar offenders are not poor, but middle class or even affluent. Most white collar criminals are not socially disadvantaged but rather have the enormous social boon that allows them to prey on those who most trust them. White collar crime is different in another respect. It is not studied with as much fervor as street crime. This is curious, because every scholar who writes xix

21 xx FOREWORD about white collar crime will say that the total financial cost of this kind of crime far exceeds that of street crime; the likelihood of being a victim of white collar crime is far greater than the likelihood of ever being a victim of a serious street crime; and the damage done to people who suffer at the hands of white collar criminals can be every bit as devastating to their quality of life as street crime. For these reasons alone, attaining a better understanding of the problem of white collar crime is an essential task of any student of crime and justice. As editor of the Wadsworth Contemporary Issues in Crime and Justice Series, I am delighted to announce the publication of the fourth edition of Trusted Criminals: White Collar Crime in Contemporary Society by David O. Friedrichs. White collar crime is a topic that is often neglected or insufficiently discussed in today s textbooks, and this book is a classic examination of the problem. This book will change the way you think about crime. It will show you how a better understanding of white collar crime will put the problem of street crime in a different perspective, and it will paint a picture of the criminal justice system that will leave you forever as an advocate for better crime prevention of white collar offenses. Professor Friedrichs is an internationally known scholar who has devoted his career to furthering our understanding of nontraditional crime and its consequences. His work has exposed the importance of the costs of white collar crime, the impact of white collar victimizations, and the need for more effective public policy about white collar offenses. In this book, he brings together the most recent literature on white collar criminality to inform the reader on this broad topic, with a confidence and comprehensiveness that no other text achieves. The work goes beyond an introduction and becomes an incisive examination of the phenomenon. Those who feel they have a good grounding in this area will find much in this book that is new and challenging; those who are neophytes to the topic will be stunned at how much there is to learn. I commend this book to you. In the study of crime and justice, there is an enormous gap between the everyday material covered by popular news and other media and the dire and overwhelmingly harmful consequences of the invisible white collar criminality known to criminologists. This book will open your eyes and leave you forever informed about a kind of crime that matters far more than is commonly thought. Todd R.Clear President, American Society of Criminology

22 Preface This edition of Trusted Criminals was written and went into production during , a period in which the United States was experiencing its greatest economic crisis since the Great Depression. Indeed, a global economic and financial crisis was occurring during this period, a reflection of the increasingly interconnected character of the world s economies and financial systems. Although the causes of the economic and financial crises are ultimately complex, there can be no question that white collar crime broadly defined played a central role in bringing them about. Wall Street financial institutions that were trusted to oversee trillions of dollars of assets, and enjoyed an eminently respectable status, undertook unwarranted risks with the downside imposed upon investors and taxpayers, with immense social harm as a consequence (the italicized key terms, in relation to white collar crime, are all addressed in Chapter 1). Large-scale financial misrepresentations and fraudulent conduct were directly complicit, then, in an ongoing crisis that has brought about trillions of dollars of losses to investors, taxpayers, homeowners, and retailers, among others. Retirement and savings accounts including college savings accounts have been devastated. Millions of people have experienced or faced foreclosure on their homes. An immeasurable amount of anxiety and emotional distress occurs in these circumstances. The crisis has also contributed to exposing especially blatant, outright investment frauds involving hundreds of millions of dollars, and in one case, possibly as much as $65 billion. And as another important dimension of the current crises, the failures of our law and the regulatory system to put into place effective legislation, regulations, and enforcement practices that might have at least limited, if not wholly prevented, the large-scale frauds, is also widely recognized now. Altogether, the present economic and financial crisis brings into especially sharp relief the extraordinary significance of white collar crime, and its control. This text addresses these topics on many different levels. Much has occurred in the realm of white collar crime and its control since the last edition of this book went into production in Accordingly, a new edition of this text seemed warranted. xxi

23 xxii PREFACE Close to 20 years have now passed since I began working on this book. The significance of white collar crime has become ever more clear during these two decades. I have been gratified by the uniformly positive published reviews of this book and by the fact that it has been adopted for use in undergraduate- and graduate-level courses in the United States, Canada, England, Israel, Finland, Russia, and elsewhere. It has been translated into Japanese. And it continues to be widely cited by scholars writing about white collar crime. The original edition of this book was inspired by several considerations. Although white collar crime is immensely consequential, it has been relatively neglected by criminologists and is characterized by much conceptual confusion. When I began working on this text, only two books had been published that could be described as white collar crime texts, and neither of them systematically addressed the range of issues arising in connection with white collar crime and its control. Quite a number of white collar crime textbooks and readers have been published in recent years. However, a number of published reviews have identified this book as exceptionally comprehensive in its coverage, and I believe it remains the single most comprehensive survey of what is known about white collar crime and its control. This book is intended primarily as a text for advanced undergraduate- and graduate-level courses on white collar crime and closely related matters. However, it should be useful to scholars and other parties interested in white collar crime because it endeavors to clarify various conceptual and theoretical issues and to survey critically a large and unwieldy literature. It also aims to provide a relatively balanced presentation of the many controversies involved in white collar crime. RATIONALES FOR STUDYING WHITE COLLAR CRIME White collar crime and more generally, the illegal, unethical, or deviant activity of respectable institutions and individuals has been relatively neglected in the study of crime and deviance. Traditionally, criminology has focused on street crime, not suite crime. The sociology of deviance has emphasized the activities of nuts, sluts, and perverts, not of corporate executives, physicians, and retail store owners, and this relative neglect has been generally reflected in the media. But one of the guiding premises of this book is that the range of activities that can fall under the heading of white collar crime is more pervasive and more costly to society than are conventional crime and deviance. The study of white collar crime should obviously be of interest to students planning criminal justice careers and to people already employed in the criminal justice system. In recent years, white collar crime has received more attention from the criminal justice system, and there is reason to believe that this attention will increase in the years to come. As the investigation and prosecution of white collar crime increases, career opportunities for individuals who are well-informed about this type of activity should expand. The prevention of some forms of white collar crime is also a major concern in the private sector, creating career

24 PREFACE xxiii opportunities in this realm as well. One of the many paradoxical characteristics of white collar crime that will be explored here is that even though much white collar crime is committed within the context of legitimate governmental and business activities, careers combating such crime can be pursued in either the public or private sector. The study of white collar crime is likely to be of interest to students of the social and behavioral sciences because white collar criminality, as it is defined here, often involves human behavior in its most devious and diabolical forms. This type of activity raises fundamental questions about human nature and responsibility. It forces us to confront the harsh realization that the distinctions between crime and order are not as great as we like to imagine and that those who benefit most from a stable social system often do the most to threaten its wellbeing. Few areas of human activity reveal more starkly the complex relationship between the productive and the destructive aspects of human nature than does white collar crime. We cannot fully understand our political, economic, and social institutions without attending to white collar crime, and our understanding of human psychology is deepened through the study of white collar criminals. The law in the white collar realm that confronts prelaw and law students is especially dynamic and complex. The problem of corporate liability poses special difficulties, and the subtle and sometimes arbitrary lines of demarcation between criminal law and civil law are crucial aspects of the study of white collar crime. A strong argument can be made that a deeper understanding of white collar crime should prove useful and relevant to students in any major. As citizens, employees, employers, and professionals, most of us are likely to be affected more by white collar crime than by any other type of criminal activity. And if we or the people with whom we have the most regular contact become involved in illegalities, such activities are quite often going to involve some form of white collar crime. Finally, if the problem of white collar crime is to be effectively addressed, many ordinary citizens must be aware of the nature of the problem and be willing to engage with the forces involved in it. Certainly one objective of this book is to promote this consciousness and engagement. NEW TO THIS EDITION Much of the original organization of the book is retained, but I have also made a number of significant changes. First and foremost, updates drawing on material published in 2008 and early 2009 have been incorporated throughout the book. Altogether, some 875 new sources are cited in this edition. Many big stories have broken in recent years, including the historically momentous election of President Barack Obama. But as was noted earlier, the on-going financial and economic crisis is surely as big a story as any, and white collar crime is a key dimension of this story. As this book goes to press, there are ongoing Congressional hearings on the laws and regulations that are now needed to minimize the chances of a recurrence of the broadly diffused forms of wrongdoing that have helped bring about the worst economic crisis since the Great Depression.

25 xxiv PREFACE When the last edition of Trusted Criminals went to press the single highestprofile criminal trial of the corporate scandals of the 2000s that of former Enron CEOs Kenneth Lay and Jeffrey Skilling had not yet concluded. The outcome of that trial, as well as some other noteworthy white collar crime trials of the past couple of years, is addressed in this edition at various points, but especially in Chapter 11. The previous edition of this book made note of significant fraud in relation to subprime mortgage loans. However, in this form of fraud and its especially broad scope came to be recognized as a central cause of the financial and economic crisis. Accordingly, far more space is devoted to frauds linked with subprime mortgage loans, in Chapter 6 and elsewhere. Major new cases of the whole range of white collar crime that surfaced over the past few years from unethical or illegal activity in the pharmaceutical industry to new technocrime initiatives are addressed in Chapters 3 to 7. Of special interest to student readers of this text accusations of wrongdoing in relation to student college loans also surfaced during this period, and are addressed in Chapters 3 and 4. The George W. Bush administration, in the final stretch of its eight-year run, was accused of complicity in various forms of wrongdoing including the corrupt firing of federal prosecutors and these matters are addressed especially in Chapter 5, as are dramatic new cases of crimes of states, and political white collar crime (e.g., the conviction subsequently vacated due to prosecutorial misconduct of Alaska Senator Ted Stevens on corruption charges). This editor addresses new dimensions of massive fraud in the world of high finance which have surfaced during the past few years. Concerns expressed in earlier editions of this book about the potential for more pervasive forms of fraud in the insurance and hedge fund industries have unfortunately been borne out, and are addressed in Chapter 6, in particular. Accounting fraud was discovered at mortgage giant Fannie Mae. These emerging forms of fraud are addressed in Chapter 6. Criminologists who specialize in white collar crime continue to develop new theoretical approaches and explanations, including the application of control balance theory to white collar crime and the role of money itself as a cause of such crime. These new developments are addressed in Chapter 8. The Sarbanes-Oxley (SOX) Act was one major, legislative response to the accounting frauds associated with Enron and other corporations. There has been much discussion on the role of inadequate regulation in allowing the financial crisis to occur; about that lack of regulation is addressed here. The response of the business community to Sarbanes-Oxley and various regulatory initiatives is discussed in Chapters 9 and 12. A shift in prosecutorial practices in response to major forms of corporate crime has taken place during the last few years, and includes the increasing use of deferred prosecutorial agreements. Also, since the last edition of this book was published, high-profile business executives have received lengthy sentences in white collar crime cases; this includes Jeffrey Skilling of Enron, who received a prison sentence of more than 25 years. The controversies that arose in connection with these practices and sentences are addressed in Chapters 11 and 12.

26 PREFACE xxv Calls for more effective responses to corporate crime and white collar crime generally have intensified. Some recent responses, ranging from Scared Straight programs for white collar crime to large-scale initiatives against corporate crime in Scandinavia are considered in Chapter 12. A significant level of concern with white collar crime and its control seems likely to expand in the years ahead. Finally, this new edition of Trusted Criminals features numerous new boxes, including: Whistleblower or White Collar Criminal? The Student Loan Industry and Fraudulent Conduct Plagiarist or Hate Crime Victim? Student Loan Officials and Conflicts of Interest Embezzling from Charities and No-Profitable Institutions Actor Wesley Snipes and a Tax Evasion Case The Corrupt Firing of U.S. Prosecutors Economic Hit Men and Crimes of Globalization Frauds and the Collapse of the Subprime Mortgage Loan Market Short Sellers Who Spread False Rumors: Worse Than Inside Traders? The Title Insurance Industry and a Rigged Market From Street Thug to Equity Market Fraudster Fraud in the World of Art and Antiquities Jordan Belmont and the Stratton Oakmont Penny Stock Fraud Is Money the Cause of White Collar Crime? An Integrated Theoretical Approach to State-Corporate Crime and Crimes of States Bailout Legislation as Save-the-Economy Measures or Save-the-Wall-Street Crooks Measures The Foreign Corrupt Practices Act: Effective Law to Combat Global White Collar Crime or Economically Harmful and Ineffective Law? Proposed Colorado Ballot Measure on Corporate Fraud The Role of Regulation in Relation to the Global Economic Crisis The SEC in Recent Years and the Financial Crisis of 2008 Credit Rating Agencies as a Failed Policing Entity Deferred Prosecution Agreements and Lawyer Client Privilege Waivers Prosecutorial Initiatives in Response to the Financial Crisis of 2008 The Enron Trials of Kenneth Lay and Jeffrey Skilling Corporate Human Rights Obligations and Corporate Social Responsibility: Promotion of Ethical Corporations or Simply Good Public Relations

27 xxvi PREFACE Scared Straight for Potential White Collar Criminals? Scandinavian Countries Initiatives against White Collar Crime Many of the existing boxes have been substantially revised and updated, especially the following: Cross-Cultural and International Dimensions of White Collar Crime The Internet, Blogs, and White Collar Crime Conventional Crime and White Collar Crime Rates Women as a Special Class of Victims of White Collar Crime Occupational Crime as Violence: Drug Dilution, Fake Asbestos Removal, and Crane Collapses Exorbitant Executive Compensation: Just Reward or Grand Theft? The Perception of the United States as a Criminal State, and President George W. Bush as a State Criminal Private Mercenaries and Military Contractors in Iraq: Operation Iraqi Freedom as Theft on a Grand Scale Investment Banks: Wealth Producers or Large-Scale Fraudsters? Fraudulent Conduct in the Mutual Funds and Hedge Funds Industries When Fraud Leads to Violence Identity Theft as White Collar Crime White Collar Delinquency Low Self-Control and White Collar Crime The Generative Worlds, the Lure and the Sensual Attractions of White Collar Crime The Dialectical Perspective on Lawmaking The Sarbanes-Oxley Act and the Backlash Against It The SEC in Recent Years and the Financial Crisis of 2008 The Role of Corporate Boards in Self-Regulation New York Attorney Generals and Wall Street Crime To Testify or Not to Testify Punitive Damages the U.S. Supreme Court and the Role of Juries Plaintiffs Lawyers as Heroes and Villains The Role of Mediators and Arbitrators in the Settlement of Complaints Shaming as a Response to White Collar Crime Retribution and Just Rewards for Corporate Crime Responding to White Collar Crime Internationally

28 PREFACE xxvii ORGANIZATION This text provides a systematic survey of white collar crime and its control. It addresses many topics that tend to be either slighted or excluded in other texts on white collar crime. Chapters 1 and 2 address the historical development of the concept of white collar crime; crucial elements of white collar crime trust, respectability, and risk; the role of the media and other agents in shaping our image of white collar crime; those who expose white collar crime, from whistleblowers to investigative reporters to criminologists; the challenges involved and the specific methods used in studying white collar crime; perceptions of white collar crime relative to other types of crime; the measurement of the costs and extent of white collar crime; and the victims of white collar crime. Chapters 3 through 7 are devoted to systematic surveys of what we know about high-consensus forms of white collar crime, such as corporate crime and occupational crime, and about often-neglected cognate, hybrid, and marginal forms of white collar crime, including governmental crime, state-corporate crime, crimes of globalization, finance crime, technocrime, enterprise crime, contrepreneurial crime, and avocational crime. Two typically neglected and sensitive topics universities and colleges as corporate criminals, and academics as white collar offenders are covered in two of these chapters. Chapter 8 offers a comprehensive survey and evaluation of the whole range of theoretical explanations for white collar crime, from demonological to postmodernist and from individualist to structuralist. Chapters 9, 10, and 11 provide a full treatment of the law and other forms of social control of white collar crime; the justice system response to such crime by many different entities, ranging from local police to federal regulatory agencies; and the adjudication of white collar crime, including the roles of grand juries, trial juries, prosecutors, defense attorneys, and judges, as well as a discussion of sentencing guidelines. Finally, Chapter 12 offers an exhaustive survey of the many possible responses to white collar crime, from the imposition of fines to the structural transformation of the social order. SPECIAL FEATURES OF THIS TEXT This text includes numerous boxes illustrating a wide range of white collar crime related matters. It also includes summaries, lists of key terms with the page numbers on which the terms are defined, and discussion questions at the end of each chapter. In sum, this book explores the conceptual, metaphysical, and methodological issues involved in the study of white collar crime. It delves into the character, causes, and consequences of this type of crime and explores the relationship of white collar crime and elite deviance to other types of illegal and deviant activity. This text examines the response of the law and the justice system to white collar crime and considers the prospects for deterring, preventing, and obliterating white collar crime.

29 xxviii PREFACE ANOTETOINSTRUCTORS That considerable lack of consensus exists on matters pertaining to white collar crime is reflected by disagreement over usage of the text s central term: Should it be white collar crime or white-collar crime? The more common (and, from a strictly grammatical point of view, more correct) usage is white-collar crime, but I have omitted the hyphen because it suggests too literal a reading of the term, which is better thought of as a metaphor. Interestingly enough, the seminal work in the field, E. H. Sutherland s White Collar Crime, did not use this hyphen (although even Sutherland was not completely clear on this matter and used a hyphen in his original 1940 article on white collar crime). White collar crime is a problem in all contemporary societies. This text uses examples from the United States for most illustrative purposes. Obviously, the specific character of and response to the white collar crime problem varies from nation to nation, but many parallel patterns exist in all countries. References to other countries and societies are made and at least some of the foreign literature on the subject is drawn upon and cited; however, as a practical matter, it is simply not possible to make a systematic, cross-cultural comparison. To date, white collar crime and the justice system response to it are far more fully documented for the American experience than for other countries, although the literature for such countries as Great Britain, Australia, and Canada is now considerable. White collar crime courses are relatively new additions to the curriculum in most criminology and criminal justice programs, and they are offered under various titles and with a variety of approaches. Some instructors are especially concerned with identifying the broad varieties of white collar crime and the different theoretical explanations for them. Other instructors are far more concerned with white collar crime as a problem of social control and with the justice system s response to it. This text was developed to accommodate the considerable diversity of perspectives on making sense of white collar crime. The order of the chapters is reasonably consistent with a conventional criminological approach to crime and criminal justice, but this arrangement inevitably is arbitrary in certain respects. Each chapter was written to stand alone, and thus instructors can arrange the chapters to suit different approaches. For example, Chapter 9 on law and social control, Chapter 10 on policing and regulating white collar crime, and Chapter 11 on adjudicating white collar crime cases can be assigned first and followed by the substantive chapters on different types of white collar crime. A variety of rearrangements are clearly possible. A test bank is available to all instructors who adopt this text. Also, a website now contains links to sites relevant to the focus of this book (these links were in Appendix B in the second edition and have been updated). All authors welcome responses to their work, and I am no exception. I have attempted to produce a book that is clear, accurate, informative, and thorough, but I recognize that some readers may have comments or suggestions. Any comments positive or negative and suggestions can be sent to me at David O. Friedrichs, Department of Sociology/Criminal Justice, University of Scranton, PA ; Comments and

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