Crime and Punishment in American History - Lawrence M. Friedman [185]
The SEC is still a pillar of the regulatory state. But its history has been, in some ways, “cyclical,” that is, “dotted with periods of vigor and vitality . . . [as well as] lethargy, passivity, and ineffectiveness.”57 The New Deal period (the thirties) and the sixties and seventies were active periods; the forties and fifties and the Reagan years (the eighties) were apparently periods of cutback. Attitudes relaxed, and regulation was laid on with a kinder, gentler hand. What seems to determine the ups and downs of this cycle is not sunspots, or chance, but American politics—and, perhaps even more so, general trends in social attitudes toward wealth. In boom times, when “anything goes,” when “lifestyles of the rich and famous” stand as models, there is less impetus to pin the criminal label on people who are making a lot of money, no matter how the money is made.
But the Reagan years ended, and the antics of the period left something of a sour taste in the mouths of many people. The savings and loan scandal of the eighties was a kind of “collective embezzlement” epidemic. 58 When the scandal broke, it carried with it a price tag in the megabillions, which the public will have to pay. Jail seemed too good for the people who looted this industry; yet few of them actually went to jail. The fuss over Ivan Boesky, insider trading, and Michael Milken have also generated miles of publicity, all of which must have some impact on public attitudes. Exactly what Ivan Boesky did in the 1980s to get himself a jail sentence is wholly mysterious to 99.9 percent of the population; these are arcane crimes of paper-pushing and computerblipping. Probably the public sees only that men of vast wealth have committed strange, unknown, incredibly harmful acts, which have rotted out the economy and made the whole financial structure totter. But how and why and what are totally arcane, beyond the grasp of most good citizens (the author included).
There is much less mystery about what it means to dump toxic wastes into the water source, or to spew killer fumes into the air. The future of the ozone layer is as technical and mysterious as the ways and habits of the futures market. But the awful consequences that will or may occur are pretty easy to grasp: skin cancer, for one. In any event, not many people play the stock market, but everybody has to breathe and drink water. The publicity over some pollution scandals has been as great as that about piracy in the savings and loan business or insider trading. Here, too, there must be some impact on the public.
The issue of corporate criminality, and of crimes of the rich and famous, has a distinctly political flavor. Sutherland was a scathing critic of the “apparent disregard” of the legal system “for the serious harm that white-collar crimes caused.”59 He argued that these high and mighty malefactors did far more harm to society, and deserved more punishment, than some poor wretch who stole a loaf of bread or held up a dimestore. He was disappointed that the legal system would not criminalize even high-class plunder; the criminal justice system, he felt, treated business people and the well-off with kid gloves.
Moral indignation is one thing; objective research is another. Does the legal system, in fact, go easy on white-collar criminals? This is not a simple question to answer. Sutherland felt that the system ignores a lot of extremely reprehensible behavior—certain rapacious business tactics, for example, are simply not to be found in the statute books. The scales, in short, are tilted before we even begin to consider enforcement policy.
But even if we put this point to one side, we can still ask: Does the white-collar criminal do better in court than the street criminal, other things being equal? Of course, other things never are equal. And there are white-collar crimes and white-collar crimes. The most elaborate recent study found that about the same percentage of white-collar criminals went to prison as did those who committed ordinary crimes in a sample of cases in