Introduction: examining white collar crime with trifocals.

• Author: Podgor, Ellen S.

1. 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. (25)

1. LEGISLATIVE DRAFTING

   Both Professors J. Kelly Strader and Julie Rose O'Sullivan's Articles consider fraud, one of the most common areas in the white collar context. (26) Specifically, they focus on the "honest services" provision, (27) a twenty-eight-word definition statute enacted to counteract the Supreme Court's decision in McNally v. United States. (28) Most recently in United States v. Skilling, (29) the Supreme Court limited the statute to "bribery and kickbacks." (30)

   In his Article, Skilling Reconsidered: Honest Services Fraud and the Legislative-Judicial Dynamic, Professor Strader places the Skilling decision in the context of overcriminalization. (31) He dissects the Court's opinion, noting how long it took for the Court to accept a case that would finally limit the honest services provision. Although he "provides a soft defense of the Skilling decision," (32) he does offer a critique of Congress' proposed response to the decision in the Clean Up Government Act of 2011. (33)

   Professor O'Sullivan, in her piece, Skilling: More Blind Monks Examining the Elephant, (34) uses Skilling to examine the broader issue prevalent in white collar cases: the role of the judiciary in the statutory process. She is chagrined with the process, irrespective of the result, and states that Skilling "presents a wonderful example of how criminal law ought not be made, whether viewed from an institutional, societal, or individual standpoint." (35)

   Professors Strader and O'Sullivan both highlight a crucial and recurring issue in the study of white collar crime--how best to draft a statute that will encompass all conduct that should be considered criminal, while also providing a statute that is specific enough to offer sufficient guidance of what is to be considered illegal. (36) Honest services fraud has been the ping-pong ball between the legislature and judiciary, and as noted by both...