Street crime, corporate crime, and the contingency of criminal liability.

• Author: Brown, Darryl K.

INTRODUCTION

Theories of culpability and punishment in criminal law seek to explain what conditions are necessary and sufficient for criminal punishment. Under a retributivist view, the defendant's fault or blameworthiness is not only necessary for punishment, but also functions as an affirmative, justifying reason to punish.(1) Retributivism asserts a crucial role for criminal law's unique ability to express moral condemnation(2) in addition to more concrete penalties, which civil sanctions often can inflict just as well.(3) Retributivism implies that when the offender's conduct meets certain criteria, criminal punishment is not only justified but necessary; in fact, the state has a duty to pursue it. Deterrence, on the other hand, has no role for judgment of an offender's fault or culpability except to the extent that expressing such judgments furthers the deterrent effect of punishment.(4) Deterrence theory, strictly conceived, does not look retrospectively at an offender's conduct for justification; its view is prospective, justifying a sanction as a means to reduce future wrongdoing.

Even when retributivism or deterrence offers affirmative, justifying reasons to punish offenders, however, in practice we seldom use criminal law to address such wrongdoing. Many considerations affect whether an offender will be charged and convicted beyond whether his conduct accords with the elements of a crime or defense. One aspect of this broader assessment is the jury judgment, which can assess an actor's particular circumstances to determine whether her actions are blameworthy or not. But this process of assessment also occurs at the initial stages of enforcement, when the police and prosecutors decide to arrest and charge, and it is of even broader scope there. The assessment at that stage looks not only at the circumstances around the actor's conduct, but also takes account of a range of consequentialist concerns and practical considerations, such as management of limited resources. Further, such judgments are colored by social perspectives that help distinguish between otherwise similar instances of conduct.(5) This broad range of criteria explains how the government answers the routine question that permeates criminal practice: when an offender has violated the law and a jury would convict her, on what grounds can the state decline to prosecute? Widespread declination is not fully explained by the common rationale of managing limited resources nor by the marginality of some criminal conduct, such as a first offense or causing minimal harm,(6) because the state sometimes employs extensive civil remedies for serious wrongdoing covered by criminal statutes that is both intentional and imposes substantial harm.(7)

To describe the actual working of criminal justice practice we need to uncover the criteria, beyond the legal elements, for imposing criminal culpability. Judgments of culpability are contingent not only upon the blameworthiness of an offender's acts, but also upon the perceived efficacy of criminal sanctions as a deterrent. Those assessments, in turn, depend on the alternatives to criminal law--public and private civil law, such as tort law or administrative regulation, as well as other social policy options, such as nonlegal crime prevention strategies like community youth programs and good corporate citizen campaigns.(8) Further, use of criminal law hinges on the social costs of both crime and punishment. Finally, blameworthiness itself is not only weighed against these consequentialist concerns, but shaped by them.

Criminal law's expressive and retributive functions sometimes conflict because punitive approaches alienate offenders, reduce cooperation toward compliance, and may damage the legitimacy of law that is important for deterrence. Even when morally justified, retributivist sanctions can harm prevention efforts and reduce voluntary compliance. Faced with that irony, we sometimes decide to forgo prosecution of offenders for whom we have affirmative, justifying reasons to punish.

This Article makes three broad points. The first is as much conceptual as practical: retributivist and deterrent motives sometimes conflict. Determinations of criminal culpability are contingent on the criminal law's civil alternatives and on its utilitarian costs and benefits. The second is a political and policy point: this conflict is mediated inconsistently, so that criminal liability is distributed more unevenly among white-collar or corporate offenders than it is among street offenders. This is not because of hard distinctions in those realms--different sorts of offenders, crimes, and possible remedies--but because of how we have developed, or failed to develop, civil alternatives to criminal law in each sector and the ideological lens through which we make those alternatives appealing. Corporate and white-collar crime prosecution differs from street crime prosecution because of its different mix of retributive and deterrence concerns, which leads corporate crime policy to take greater advantage of our knowledge of how social norms interact with law, of the social costs that accompany punishment, and of the alternatives to criminal law. Criminal law is a comparatively minor tool for addressing white-collar wrongdoing. For street wrongdoing, in contrast, criminal law remains the dominant instrument. Our white-collar crime policy has a much better mix of regulatory strategies, civil remedies, and criminal sanctions than our street crime policy does. Our practice of punishment contributes to unproductive retributivism in street crime law.

Third, the analysis yields practical policy recommendations. Rather than accepting the long-standing argument that corporate crime's tremendous harms require treating it more seriously, we should instead treat street crime more like white-collar crime. We can do this by expanding nascent policies already tested on a local scale but that depart from the punitive trend that now characterizes street crime policy.

My argument proceeds in five parts. The first Part reviews recent literature on norms and other social phenomena, integrating and comparing findings in street and white-collar contexts. These developments prompt the reassessment of criminal law's utilitarian value, an insight acted upon much more in white-collar crime policy than in street crime policy. Part II contrasts our dramatically different approaches to wrongdoing in street and corporate settings, a divergence that looks odd in light of the explanatory power of the social norms literature in both contexts. The next two Parts explore the reasons for, and consequences of, these divergent approaches, arguing that the distinction in enforcement strategies is largely unjustified by differences in offenders, conduct, or harm in the two contexts; the analysis shows why street crime policy remains less effective and less fair than its white-collar counterpart, with higher social costs. Part V suggests how we could move street crime enforcement and punishment productively in the direction of white-collar practice by reducing the role of criminal law in favor of civil and regulatory strategies sensitive to social norm insights.

1. SOCIAL NORMS, SOCIAL COSTS, AND STRUCTURAL LIMITATIONS

   In this Part, I briefly review some now-familiar social forces that criminal law scholarship has recognized in recent years as central to understanding how law works to regulate behavior. I cover this familiar ground to highlight its insights for white-collar as well as street crime, to provide a reference for the analysis that follows, and to situate within it two features somewhat underemphasized in discussions on law and social norms: structural influences and psychological reactions to enforcement strategies such as resentment.

   1. Social Norms and Social Influence

      Criminal law scholarship recently has developed several important insights that provide a basis for revising our practice of criminal justice. First is the wealth of attention to the role informal social norms play in governing behavior. Traditional deterrence theory focuses on formal legal sanctions as the important influence on potential offender conduct; if we increase either the certainty of conviction or severity of punishments, rational offenders should reduce their misconduct. This premise presumably underlies the dramatic increase in incarceration rates in the last quarter-century. Social norms describe the informal, nonlegal rules that shape behavior, including decisions to violate the law. Norms arise among all sorts of social groups; they are the informal rules that describe conduct that groups either encourage through rewards or discourage through informal sanctions.(9)

      Related to norms is the idea of social influence, which describes the well-known phenomenon that our choices are influenced by what other people choose and approve of. We conform our behavior to that of others in all sorts of ways, from fashion and speech customs to choosing television shows, political candidates, or restaurants; to joining in mob violence, cheating on taxes, or committing other crimes.(10) The more others around us do something, the more likely we are to approve of it and to do it as well. The more others avoid certain conduct, the more likely we will act similarly. Behavior and preferences are shaped by what those around us are doing, wanting, or approving.(11)

      With the recognition of the role that social norms and influence play in fostering law-breaking or law-abiding, scholars have drawn increasing attention to the interaction of law and norms. Legal goals of crime prevention or dispute resolution are more likely to be successful if the law can work in conjunction with social norms. The law can foster compatible social norms--norms that encourage the same conduct that the law wants to encourage---and can diminish the strength of norms that conflict with legal goals, like...