March 14, 2010
The Utilitarian vs Kantian Methods of White Collar Crime Punishment
Guest Blogger - Brooklyn White
It’s becoming more rampant now than it ever was, largely because of the advances being made in technology and communications. White collar crime is now the main tool for those who want take the easy road to riches and wealth – yes, there is hard work involved, but it is all directed to the immoral and unethical practices of fraud, forgery, embezzlement and trickery. We’re all aware that white collar criminals are punished differently from those who commit blue collar crimes like murder, rape, arson, burglary and assault, and there is considerable debate on why this discrimination exists. With federal sentencing guidelines for these crimes being advisory rather than mandatory, it is up to the presiding judge to use their discretion in deciding how to punish the criminal.
In general, white collar crimes are punished by a large monetary fine and/or some time in prison. Some criminals may even be let off after being set to perform social service while others may be confined to their home as punishment. No matter how you look at it, white collar crime seems to be higher up on the ladder than the blue collar variety. The criminals are mostly rich enough to be able to fork out the fines (without it affecting their financial standing significantly) and/or bribe people to get their sentences reduced.
There are two schools of thought on imposing punishment for white collar crime:
The Kantian Method: takes a stand that white collar crime is as bad as the blue collar kind and so, must be punished on similar levels. According to the Kantian perspective, white collar criminals must be punished to the full letter of the law. By Kant’s argument, the people who perpetrate the crime are acting rationally, and this means that they should suffer the consequences of their actions.
The Utilitarian Method: follows the idea that if the crime is for the "greater good", then it is not punishable or punishable by lenient methods. Those who believe in this perspective tend to take the view that it is acceptable to accept plea bargains if some criminals turn state’s witnesses and turn their partners in crime in. Here, punishment is doled out according to the final utility value created.
Both perspectives have their pros and cons – with the Kantian method, we can justify that every white collar criminal knows what they are doing and are completely rational in their thoughts and actions. Also, they fail to consider the effect that their actions have on the people they defraud or cheat – lives are ruined and some victims are even driven to commit suicide. Also, if burglary is a blue collar felony, then why are large scale frauds and embezzlements treated under the more fanciful umbrella of white collar crime?
The Utilitarian method begs the question – who decides what the greater good is? What’s good for you may not be as good for me, so under what conditions is the overall utility value of the crime judged?
Punishment in white collar crimes must be severe enough to prevent the perpetrator from repeating their ways and also a definite deterrent to others who want to tread the same path. And with most white collar criminals being rich with deep pockets, the only thing they’re probably afraid of is time in a maximum security prison.
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While some white collar crimes, such as embezzlement, are clear cut and easy to
understand, (and theoretically to punish), other crimes, such as "honest ervices
fraud" and some insider trading cases present more ambiguity--in fact some white
collar "crimes" are at the sole discretion of the prosecutor, and are often nearly indistinguishable from legal, though ethically questionable behavior. When viewing white collar crimes through the lens of 1. Did a crime actually occur? and 2. Who is responsible for the crime? and 3. Who was damaged by the crime, and how much damage was caused?--compare this to the actual dead body, the actual break-in and property stolen, the actual rape. These crimes Everyone can clearly identify and know to be wrong, versus say, failing to file a report of taking more than $10,000 cash out of the country---which can lead to criminal charges and loss of the funds. Pretty severe penalties for a "white
collar non-violent" type crime, that might not even be Known to be a crime by
many people (as opposed to the burglary example)
Posted by: folly | Mar 16, 2010 4:28:20 PM