White collar crime is a type of criminal behavior that often lacks a clear victim. While more traditional forms of criminality result in the obvious loss of life, property, or mental damage to an individual, white collar crime stands alone as a unique category of illegal activity that does not always have a victim that can be pinpointed. Indeed, “while so-called ordinary street crimes are handled almost exclusively within the criminal justice system”, comparable violations of the law by corporations have “traditionally been deal with via civil or regulatory proceedings” (Moore, 1990, p. 164). Legally, white collar crime is usually within the purview of federal regulatory agencies. However, this has not historically been an area of the law that the federal government has pursued with any sort of objective standard or consistency, thus resulting in a haphazard and “considerably inconsistent trend among the federal courts” (Mills, 2008, p. 1372). This paper argues that while white collar crime can often lack a victim in the traditional sense of the word, financial-based crimes and violations of corporate law can nonetheless have substantial negative ramifications on the market as a whole. Moreover, white collar crime can be shown to have demonstrable material harm on an individual, especially when loss of assets is a result of illegal behavior by corporations or another form of investee.
The Federal Bureau of Investigation (FBI) is the arm of the United States Department of Justice that deals with domestic criminal behavior within the jurisdiction of the federal government. The FBI chooses to define white collar crime as, in short, “lying, cheating, and stealing” (2013). The longer definition, which is “those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence” expands only on the theme that the crime itself is not dependent on the use of force. The matter of whether white collar crime is victimless, then, is addressed in the FBI’s very definition of the term itself—a single act of white-collar crime “can destroy a company, devastate families by wiping out their life savings, or cost investors billions of dollars”. However, it is clear that the government’s definition alone is not sufficiently applicable in the strictest sense of the law. One must be able to differentiate, for example, “between criminal fraud and ‘sharp dealing’, insider trading and ‘savvy investing’, ‘bribery and ‘horse trading’, tax evasion and ‘tax avoidance’” and numerous other forms of very ill-defined crimes where the act itself is not always clearly against the law (Green and Kugler, 2012, p. 33). These are all examples of common business practices that can often toe the line between legal and illegal and, regardless of their legality, can massive ramifications on the daily lives of investors and laymen alike. The desire to gain an economic edge over one’s competitors, for example, can be a powerful motivator that can tempt a corporate policymaker into pursuing business options that may bleed over into illegality. Likewise, the inherently vague area that is white collar crime lends itself towards poor application of existing laws, and oftentimes haphazard usage of federal policies.
The term “white collar crime” was itself only invented in relatively recent years. Edelhertz (1983) traces the development of white-collar crime back to 1940, when Sutherland, a prominent criminologist, began analyzing instances of upper-class crime. Sutherland, however, “was not the one to discover the crimes of business and the upper classes; law enforcement and regulatory agencies were already active the in the field” (1983, p. 109). The precedent for choosing to narrow down white collar crimes to only specific breaches of the law by specific actors dependent on their economic situation began here. Edelhertz (1983) states that Sutherland “focused attention on who the offender was and where the offense was committed [which] made it difficult for the prosecutor to accept that embezzlement by a bank president was white collar crime, and that the same act by a bank teller was not” (p. 110). The 1970s saw a marked increase in the complexity and spread of white-collar crimes, with specific attention pain towards matters of public corruption, fraud in the corporate sector, and general dishonest and fraud taking a leading role. By the 1980s, the presence of computers in the workplace “greatly enlarged the paucity of organizations to engage in complex and far-flung operations by making it possible to manage and digest information”, which in turn greatly expanded the opportunity of computer-based white-collar crime (Edelhertz, 1983, p. 121). Moreover, the creation of technology-based corporations helped open entirely new sectors, many of which were unregulated, to the exploitation of white-collar criminals. In addition, the deregulation of the economy exemplified in the Reagan administration would only help the overall trend of white-collar crime in the United States and abroad.
Understanding what motivates white collar crime is critical towards the analysis of whether or not financial crimes have actual victims. Bucy et. al. (2008) argue that “greed [is] the most commonly cited reason” for financial-based crimes (406). Indeed, financial incentives proved to be a recurring and perennial justification for acts of white-collar crime in nearly every example that the 2008 study analyzed. Moreover, greed aside, “participants noted opportunity, a sense of entitlement, arrogance, competitiveness, and rationalization as motivating factors” (407). Here, we see can see examples of how individuals who commit white collar crimes can convince themselves “that the act is not really criminal or they believe their actions are a common practice in their field” and that “less than 5% of the study participants expressed the view that white collar criminals commit crimes because they are ‘amoral’ or ‘evil’” (407). White collar crime, then, can be motivated by both greed and the illusion held by many that financial crimes of the corporate sort are not necessarily evil or immoral; instead, these crimes are viewed by their perpetrators as largely harmless. The practice of “skimming off the top”, which is business jargon for setting aside profits and siphoning funds from a company and its investors, is by definition illegal, yet Bucy et. al. (2008) argue that the practice is still widespread and not seen as a crime in the traditional sense.
Moreover, white collar crime is often prosecuted as an individual crime, and only rarely are corporations held criminally liable for the actions of their staff. More specifically, white collar crime can, at times, include areas of questionable legal activity. McBarnet (2006) argues that the so-called practice of “creative compliance”, which is to say the “approach to compliance [with the law] that refers to the use of technical legal work to manage the legal packing, structuring, and definition of practices” in order to “claim to fall on the right side” of the law (p. 1093). In other words, creative compliance is the act of minimum compliance with the law in order to manipulate and warp the law’s intended spirit. By analyzing the law and subsequently finding vague areas where avoidance can be achieved, corporations can oftentimes seem to comply with the law while, in effect, defeating its intended purpose.
Most disappointing for the respect for the rule of law is the unique way that creative compliance has warped corporate culture in contemporary business. McBarnet (2006) states that creative compliance is “a matter for business congratulations and professional pride [and is] something to be emulated rather than reviled” (p. 1094). From a legal standpoint, corporations that engage in creative compliance are perfectly legitimate in their endeavors—when it comes to operation completely in the purview of the law, this form of compliance serves as an effective way to guarantee legal protection from questionable business practices. Thus, while not illegal, this practice represents the immediate other side of the line that white collar crime toes with frightening regularity. Creative compliance, then, is the shallow, legal version of white-collar crime that, depending on how the law is actually interpreted and enforced, occasionally cross over to illegality and be subject to prosecution.
Interestingly enough, the sheer scale and prevalence of white-collar crimes in contemporary society results in a situation in which it is far more likely that an average citizen has been adversely affected by white collar crime than traditional street crime, home invasion, or other forms of personal criminal behavior directed at individuals. Friedrichs (2011) states that the chances “of being a victim of white-collar crime is far greater than the likelihood of being a victim of a serious street crime; and every bit as devastating to one’s quality of life”. While it is unlikely that an individual has a particularly high chance of robbery, for example, it is far more likely that the same individual could be a victim of illegal business practices on behalf of his corporation, or perhaps that his stock portfolio includes corporations that have individual actors that flout federal regulatory laws regarding white collar crime and engage in criminal behavior. Moreover, “white collar crimes cause substantial social harm by undermining the economic, exacerbating the divide between poverty and wealth, eroding trust, and depriving individuals of time and resources” (Perri, 2011, p. 218). Fraud, the most common type of white collar crime, has been shown to be a major drain on the international market, with the Association of Certified Fraud Examiners estimating that nearly $2.9 trillion had been lost in 2009 due to fraud and fraud-related activities, and that between 1998 and 2007, 347 public US corporations lost over $120 billion to white collar crime (Perri, 2011). Thus, on the macro scale, white collar crime is far from harmless.
Attempts have been made to declare white collar crime as effectively victimless. To do so would suggest that “either no one feels the injury or that the injury is substantially more indirect and spread out over a large number of people, as opposed to the direct injury experienced in a violent crime” (Perri, 2011, p. 218). This is an alluring train of thought, as if one cannot pinpoint the actual harm committed on a person from a crime, it can be said that the crime lacks a specific victim. However, this is a largely “inaccurate” and “minimized degree of perceived harm”, as it results from the incorrect assumption that white collar crime is “diluted over many individuals and not concentrated” (2011, p. 218). Ford (2008) offers a strong critique of the view that white collar crime is effectively victimless, or at least held to be so by “judges [who] often express the view that white-collar crime lacks violence and identifiable victims” (p. 396). While it is true that corporate fraud, for example, puts a gun to no man’s head, the economic impact of white-collar crimes cannot be denied, and, more importantly, that harm is oftentimes directed at shareholders and the public at large. Despite this, “the social harm of white-collar crimes can be measured for the purpose of punishment, even if […] not with exact precision” (p. 397). Granted, it can be more difficult to pinpoint the exact harm done to shareholders, the public, and other possible victims, but the following four criteria offer an objective way to determine the harm caused by white collar crime.
Ford (2008) argues that the negative ramifications of white-collar crime can, in fact, be determined and calculated. Specifically, “the severity of the social harm” that comes as a result of white collar crime can be determined as follows: first, “the amount of monetary loss”; second, the "spread" of the events over time and place; third, the nature of the victim; fourth; the presence and nature of violation of trust” (p. 397). By utilizing this process, one can determine with fair accuracy the approximate social harm caused by an act of white-collar crime and can then gauge the appropriate severity of sentencing. Moreover, it becomes clearer that white collar crime does, in fact, have actual victims when one challenges the idea that white collar crime is merely the “aggregate of harms caused to individuals” and is instead “replaced with a view that society suffers an injury” as a whole whenever a crime is committed by a corporation, executive, or other white collar worker in the drive to increase profits or personal gain (p. 398). Similar to the act of public corruption, white collar crime is a breach of trust given by society to corporate leaders and market specialists. Thus, the “duty allegedly breached is to the market, conceived as broadly and amorphously as the body politic” (Mills, 2008, 1374). Acts committed in the name of white-collar crime are instances of criminal behavior driven by individual or collective desire for gains, and the harm to society as a whole is very real.
Moreover, it can be argued that the market itself can be a victim. While this “creates in federal white collar law a new concept of an inchoate crime, no longer focused on the causation of, or even the attempt to cause, the kinds of demonstrable material harm that most criminal law, even traditional white collar law, aims to prevent”, demonstrable harm can, in effect, be demonstrated through simple extrapolation (Mills, 2008, 1372). Take, for instance, the example of Enron, a company that engaged in illegal business and accounting practices in order to fabricate its own prosperity. If a common individual invests in Enron, trusting in the company’s ability to operate legally and within the boundaries of the law, and then the company violates that trust leading to its own downfall, it is possible to indicate the presence of demonstrable harm.
Money invested is not fundamentally different than money kept in a bank, or even in one’s own home. It is, when in the form of a company’s stock, held with the implicit guarantee that any decline or increase in value will be due to the company’s performance (internal regulation) and the vagaries of the marketplace (external regulation). This guarantee is held in good faith by both parties, between the investor and the corporate leaders. If, at any point, this agreement is held to be invalid, the guarantee is broken. With the example of Enron, it is clear that if an individual purchases shares in the corporation, he or she will, by the virtue of the purchase, assume the corporation will act in its own best interests within the confines of the legal system that constrains it. In essence, the corporation is trusted to increase the value of the share to the highest level possible within the confines of the regulatory system. At no point does the company bear responsibility to break the law in the pursuit of profit, and, as the example of Enron will show below, doing so can and often has a demonstrably negative impact on the corporation.
However, it is equally evident that any regulation of the stock price of the company that comes as a result of the vagaries of the marketplace or the legal actions of the company are inherently allowable. If Enron had collapsed on its own accord, lacking any sort of illegal activity, say due to misguided management or a failed business venture, no one could realistically claim to be a victim in the traditional sense. It is part of the implicit contractual bargain between both the investor and the investee that the failure of the company through external regulation is not cause for claiming the status of “victim”. This change, however, when the investee breaks that implicit agreement by knowingly committing fraud or other forms of criminal activity in which the investor had trusted the company to avoid. In this sense, the investor can claim the status of victim, as he has demonstrable harm clearly shown to his investment through the illegality of the investee. There is clearly harm caused by the illegal behavior of the corporation or other invested institution. Thus, we can safely say that harm can be demonstrated in a material sense upon the collapse of a corporation due to its illegal practices. This harm occurs at the point in time where the investor’s money is no longer under the implicit guarantee of stewardship promised at the moment of purchase—instead, the investor is now a victim of the corporation’s choice to engage in illegal behavior, and thus can demonstrate material harm.
To understand white collar crime in contemporary society necessitates the use of specific case studies in which the ways corporations toe the line between white collar crime and minimum creative compliance can be made clear. The best example of this is the example of Enron, an American multinational corporation that focused on energy production through electricity, paper, and natural gas. Famous for the unveiling of its illegal business practices in 2001, Enron is a classic example of white-collar crime at its finest.
McBarnet (2006) explains that the basis of Enron’s scandal is to be found, like many other examples, in its accounting books. With “the heart of its accounting [as] the practice of ‘off balance sheet (OBS) financing’”, Enron found itself able to create separate, independent companies and partnerships “which it control[led] but which did not need to be included in its accounts” (1101). Enron could use these “special purpose entities (SPE)”, or off balance sheet enterprises, in order to both “enhance the credit rating for the ‘special purpose’ for which the entity had been set up”, and also to hide the ‘bad news’ in the form of “debts, losses, and risky ventures out of the parent” company’s accounts (1102). In other words, SPEs could be used be a corporation to perform specific tasks and fulfill certain functions of the parent company. With an SPE, a parent company could “isolate financial risks” in the SPE and, provided the necessary legal requirements of separate ownership and/or partnership are met among others, the SPE would not appear in the parent company’s balance sheets (Giroux, 2008, p. 1215). Thus, this practice would eventually be the downfall of Enron’s incredible energy empire.
Enron’s creative compliance and subsequent fall into white collar crime came about shortly after the company’s CEO Jeffrey Skilling hired Andrew Fastow, a man with great experience in the SPE industry. He created “Enron’s first SPE in 1991, called Cactus, to fund long-term contracts with oil and gas producers” (Giroux, 2008, p. 1216). Cactus allowed Enron to receive “the investor cash equivalent to what was paid to the producers”, which came about as Cactus would sell packages of long-term contracts to investors in return for payment in gas once development had occurred (p. 1216). In the end, Cactus was used as a tool by Enron in which the parent company could use Cactus to move its own debt off onto the SPE and receive the cash flow of the SPE on its own balance sheets. This process, then, can be summarized in that the “basic purpose of Enron’s use of SPEs and other structured financing techniques was to ‘keep fresh debt off the books, camouflage existed debt, book earnings, and generate operating cash flow’” (Giroux, 2008, p. 1216). Still, even at this point, Enron was merely engaged in creative compliance with the law. The line began to collapse in 1997, with the creation of Chewco, another SPE.
According to federal law, an SPE would have to be funded by “three percent equity interest” by an independent “equity investor”, and the investor must be “an outsider and assume the risk of transactions involved” (Giroux, 2008, p. 1215). Here, in order to set up Chewco, Enron used an employee of Enron’s SPE Fastow named Michael Kopper to invest the money, explained away in legal terms by the fact that Kopper did not hold an office at Enron. Moreover, the three percent provided by Kopper was not liquid cash and instead was borrowed. At this point, “Enron was moving from aggressive [creative compliance] to fraudulent accounting” (p. 1217). The subsequent growth of Enron and the use of many SPEs to hide debt and inflate numbers had crossed to the line to clear illegality, and the eventual scandal that broke out in the winter of 2001 put an end to Enron as a corporation entirely. Thus, “Enron did not stick to creative compliance […] it also went further. According to the indictments, it not only engaged in creative accounting but in out and out fraud (McBarnet, 2006, p. 1106). Enron, then, suffered as a result of its clear preference for illegal accounting activities and clear fraud towards investors, and was met with appropriate consequences.
At the same time that Enron met its demise, it can be argued that Enron is a classic case of the ways in which the legal system views white collar crime as inherently victimless. McBarnet (2006) argues that it “took an extreme case, like Enron, and a bold approach, to push the regulatory frontiers” (p. 1108). The charges leveled against Enron were all based on specific violations of the federal regulatory legal code mandating proper accounting practices and, at no point, was the underlying matter of the social harm caused by Enron addressed. Indeed, it can be said that the example of Enron could be construed as an example of white collar crime succeeding in its purest form—incredible profits and creative accounting enabled Enron to continue to profit massively from society as a whole and the prosecution itself focused on only a few key individuals that were seen as responsible for the crimes of an entire corporation.
In essence, the legacy of Enron is “an indictment of fraud but an endorsement of creative accounting” in the sense that no steps have been taken to curb the prevalence of shady accounting practices in the United States (p. 1108). Instead, corporations are still able to hide behind the legal protection that creative compliance offers them and allows them to mask the impacts of social harm that come about as a result of white-collar crime. The presence of “corporate fraud trials have also provided a unique opportunity to gain insights” into the ways in which prosecutors approach the idea of white-collar crimes and, moreover, outlines the underlying social assumptions regarding the negative ramifications of white-collar crime (Brickey, 2006, p. 419). Enron, then, without a double helps to exemplify the incredible scale of white-collar crime, as well as its negative impacts on the social wellbeing.
The costs, then, of white-collar crime are far from minimal. The FBI’s Financial Crimes Report to the Public “focuses its financial crimes investigations on such criminal activities as corporate fraud, insurance fraud, mass marketing fraud, and money laundering” and reports on the statistics that support the idea that white collar crimes are far from harmless (2011). Moreover, as the most prominent federal agency involved in the investigation of major accounts of white-collar crime in the United States, the FBI serves as one of the best sources of reliable information and data with regards to the social costs of white-collar crime.
Corporate fraud, or fraud involving large corporations, has been focused in recent years on the subprime mortgage lending institutions and related companies. By orientating most corporate fraud investigations on “brokerage houses, home-building firms, hedge funds, and financial institutions”, the FBI is interested in understanding how and why these institutions helped cause the “collapse of the subprime mortgage market in the fall of 2007” (2011). Indeed, the report goes on to state that trillions of dollars have been lost as a result of corporate fraud. Moreover, many businesses and corporations were forced to close their doors following the collapse of the market in the 2000s, which has led to an increase in the number of cases under investigation by the FBI. Specifically, by the end of the fiscal year of 2011, “726 corporate fraud cases were being pursued by FBI field offices throughout the United States, several of which involved losses to public investors that individually exceed $1 billion” (2011). These figures represent the very real harm caused by white collar crime—upwards of $1 billion from individual acts of white-collar crime is a staggering sum, and it is unlikely the full extent of economic damage caused by white collar crime can ever be known.
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The figures, however, are not limited to total costs per year. In 2011, the FBI achieved “242 indictments and 241 convictions of corporate criminals”, and there are many more cases pending that will likely increase this figure substantially. In terms of sheer money, the FBI “secured $2.4 billion in restitution orders and $16.1 million in fines from corporate criminals, again reflecting the massive scale and power of white-collar crime. While this figures are inflated somewhat given the collapse of the housing market and the ensuing convictions from illegal business practices in that debacle, it is clear that white collar crime is nonetheless one of the single most significant drains on the United States economy, and represents a combined loss of assets and investor capital that exceeds any other form of common crime in the United States today.
Securities and commodities fraud represents a powerful sector of the United States economy where the costs of white-collar crime can be made clear. With over 1,800 pending investigations since 2008, the FBI has increased its “fraud investigations by 52 percent” (2011). Securities and commodities fraud is based around the core concept of diversification of economic portfolios—investing in U.S. securities and commodities markets enables the individual or corporation to seek security for their investments in an uncertain market. This type of fraud, then, is rapidly rising in popularity, as the massive influx of money and capital into the securities and commodities sector inherently creates opportunities for criminal behavior. Here, “the victims of securities and commodities frauds include individual investors, financial institutions, public and private companies, government entities, pension funds, and retirement funds” (2011). Thus, victims of white-collar crimes are not limited to anonymous investors and investment firms, but rather the actual individuals that comprise retirement funds, pension entities, and government-run endeavors.
By the end of 2011, the FBI has shown a marked increase in pursuing securities and commodities fraud. With “1,846 cases of securities and commodities fraud and520 indictments and 394 convictions” in 2011 alone, the FBI also acquired “$8.8 billion in restitution orders; $36 million in recoveries; $113 million in fines; and $751 million in forfeitures. These figures are reflective of the extent to which white collar crimes does, in fact, adversely affect the livelihood and well-being of investors and participants.
An underrated, though occasionally publicly visible form of white-collar crime is fraud committed by financial institutions. Financial institution fraud (FIF) is a major part of the FBI’s war on white collar crime in the United States and the FBI “continues to address other fraud schemes that impact our financial institutions” (2011). Moreover, FIF investigations are tied with the failure rate of banks, another concern of the FBI. The statistics published by the FBI in 2011 claim that only 2.85 percent of “pending FIF investigations […] involve criminal activity related to a failed federally insured financial institution”. Thus, FIF fraud, while an issue, seems to be localized to non-FDIC insured banks and financial institutions, and that the $13.6 trillion in deposits insured by the FDIC remains safe. While white collar crime continues in this sector, a rather ironic turn of events has occurred—the collapse of many banks in 2007-2011 was due to their “unsound banking practices and inappropriate risk management tied to heavy concentration of commercial real estate and acquisition, development, and construction loans” (2011). These unsound practices effectively forced many of the individuals responsible for creating those policies out of the market due to the high closure rate of banks during the financial crisis. In return, only “some level of fraud is usually uncovered in many of the loans”, meaning that the “catalyst for failure has been the economic climate and not criminal activity” (2011). Regardless, it is clear that fraud and other forms of white-collar crime are at least contributory factors for the collapse of many banks, and the subsequent loss of wealth of bank investors and consumers can be tied to fraudulent activity.
It is clear that white collar crime is directly responsible for the loss of billions of dollars’ worth of assets in the current economic climate. The claim that white collar crime is victimless is without any basis in reality—Operation Broken Trust, launched by the FBI in 2010, “involved 343 criminal defendants nationwide and more than 120,000 victims with losses attributable to alleged criminal activity of more than $8 billion” (2011). 120,000 victims, subject to the loss of their property and well-being due to the criminal activity of other individuals such as Bernie Madoff, is as clear example of victimization as logic can allow. At no point can it be said that white collar crime is inherently victimless, as the costs associated with it are very real and to deny them is to disparage the suffering of many thousands of people who feel the pain of white-collar crime in their daily lives.
White collar crime is not a crime in the traditional sense of having a clear victim, but this paper has shown the very real social and economic impacts of criminal behavior that falls under the scope of white-collar activities. It is true that this form of illegal behavior is not necessarily the easiest to pinpoint a specific victim, but it can deduce exactly how a victim can be shown to have been demonstrably harmed by white collar crimes. Far from being victimless, white collar crime negatively impacts the lives of millions of Americans and individuals abroad. While not the most public form of criminal activity and far less perceptible to the common eye than street crime, white collar crime is without a doubt one of the most significant sources of American criminal activity and will continue to be pursued by law enforcement for years to come due to the harm it causes to its victims.
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