Putting the Wall into Street Crime
It's with the greatest reluctance that I use the words "white collar crime," and I've been on a mission for a while now to end this terrible, misleading misnomer. It raises an image of guys in gray pin stripe suits sitting down with guys in blue pin stripe suits, drinking Earl Grey out of china cups with saucers. At the end of the polite conversation, all apologize, shake hands and walk away like gentlemen, agreeing to an act of contrition that will bring equilibrium back to the corporate world.
While it was never quite so pure, those days are long gone. The problem is that the idea persists despite near constant news reports of arrests, prosecutions and sentences, and no one within the sphere of corporate America, from the financial industry outward, that it will ever touch them.
At the New York Times Dealbook, Peter Henning writes about how the sentences for "white collar" defendants have grown to match, and exceed, those imposed on other types of criminals.
The tough sentences may be more of a reflection of the conduct of the individual defendants and their hubris in taking advantage of investors. Courts often express a desire to send a message to the community that financial crimes are deserving of the same significant punishment more commonly given to drug dealers and violent offenders because the harm is just as great.
Unlike drug or organized crime defendants, white-collar offenders often claim innocence because they were unaware of any wrongdoing, a position that can infuriate a judge. Mr. Petters testified at trial that he was misled by other executives as his company, an assertion that the sentencing judge found was “unbelievable — let’s leave it at that.”
Faced with a distinct lack of contrition, coupled with evidence that the defendant abused a position of authority to mislead investors, judges often feel they need to impose long sentences to let those in the upper reaches of society know that they will suffer the consequences of their conduct.
This points to the three omnipresent problems that arise with defendants accused of committing crimes with a pen rather than a gun. First, they are woefully ill-equipped to handle arrest and prosecution. There's no class in B-School on the subject, and the in-house counsel never sent them a memo on what to do when the feds come a-knocking.
Second, the shock, indignation and alpha-male reaction, ranging from "it's not like I killed anyone" to "everybody does it" create a mindset that's nearly impossible to break through. Not only are they unhelpful in their own defense, but they are often their own worst enemy. This often strikes home when they ask which wristwatch would be most appropriate to wear with a BOP issued jumpsuit.
Third, the inability to appreciate that financial crime is the new drug dealing, the new murder, the new street crime, being investigated and prosecuted with a vigor once reserved for gangbangers and drug lords. The stench of denial is overwhelming, and evident in every choice made, from selecting representation to the tie worn to impress the judge with their importance.
Yet the myth of "white collar" criminal law persists. The practitioners use it as a marketing tool, knowing that it's kinder, less threatening sound, will comfort defendants and lead them to believe that they are more specialized in handling the particularized needs of corporate executives and financial wizards who, invariably by mistake, end up in the defendant's seat. There is no harsher truth in the "white collar" world than that these defendants are facing monumentally long stretches in prison, lives destroyed and the fight of their life.
There's the new video out by Flex Your Rights providing instruction for black kids on how to deal with the police. There's no video available to teach a corporate Executive Vice President how do a graceful perp walk. That will be my job when I speak to corporate general counsel at SuperConference in Chicago at the end of May. Somebody has to deliver the wake-up call, and I'm not inclined to sugar coat it.
Until they figure out that there's no tea cup, no saucer, no genteel meeting of the minds or act of contrition that can be completed during lunch at a decent restaurant, the myth of "white collar" crime will continue to be the downfall of the new street criminal. It's time to put an end to the myth, and the first thing we need to do is either kill the phrase "white collar crime" or turn it into the pejorative it needs to be to send the message that this is no longer a tea party.
4/13/2010 8:49 AM
InsideCounsel's 10th Annual SuperConference wrote:
From Scott Greenfield's Simple Justice Blog 4/13/2010 6:17 AM Connect the dots. There's Harvey