Tuesday, March 26, 2013
Samuel W. Buell (Duke University School of Law) has posted Is the White Collar Offender Privileged? (Duke Law Journal, Vol. 63, 2013) on SSRN. Here is the abstract:
For at least a decade, and especially since the banking catastrophe, much public commentary has asserted or implied that the American criminal justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not so, at least not in the ways commonly believed. Law and practice controlling sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges easier to bring and harder to defend against in white collar cases.Enforcement institutions, and the political economy in which they exist, include features that both shelter corporate offenders and heighten their exposure. Corporate actors enjoy a large advantage in legal defense resources relative to others. That advantage, however, does not pay off as measurably as one might expect. Both in general and as applied to recent events in the banking sector, the claim of privilege can be sustained only by showing that basic American arrangements of criminal law and policing have been misguided. A fully developed argument would fault the justice system for failing to treat illegal behavior within firms as requiring omnipresent policing, looser definitions of criminality, the harshest of punishments, and rethinking of rights to counsel. Those who believe corporate offenders are privileged might have a cause. But they should confront the magnitude of their claims. And they should be aware of complications that follow from overreliance on punishment to deal with intractable problems of regulatory control.