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White Collar Crime Should Attract the Death Penalty

If you were to tune into your car radio, turn on your TV at night, or occasionally glance at the front page of any major newspaper then it would probably be obvious that the issue of crime is a major issue for most Australians. What would not be apparent however, by referring to the aforementioned sources of media is that the ‘crime problem’ is more than just a problem of the proletariat. Mass media, in the pursuit of their perfectly understandable goals of ratings and revenue, tend to treat white collar crime with ambivalence, preferring to focus on the invariably more “sensationalist activities of primarily lower class crime”[1]. What is of concern is that this ambivalence in the mainstream media towards at least the less sensational corporate criminal activity seems to have driven criminological theory and sentencing jurisprudence towards a trend of leniency when the law deals with white collar crime. To compound matters further, it appears that the structural (both soft and hard) inequality in Australia’s justice system has sent us further towards an intolerably soft treatment of white collar criminals, especially in comparison to the perpetrators of blue collar crime.

This paper sets out to first highlight just how damaging white collar crime is to the community, secondly to reveal how morally obtuse a white collar criminal has to be to commit these sorts of crimes, and thirdly that as a matter of equality, social justice and utility it is imperative by virtue of the first two points that the severity of punishments for white collar crimes be increased dramatically.

 

“With great power, comes great responsibility”

 

For the purposes of this essay, we’ll loosely use Edwin Sutherland’s seminal definition of white collar crime, being “a crime committed by a person of respectability and high social status in the course of his [privileged] occupation.”[2]  I have added the word “privileged” because I would like to focus on those offenders who have an almost fiduciary responsibility for greater society by virtue of the important and powerful positions they enjoy. This of course includes the fictitious humans who come in the form of Corporations themselves, many of whom are important employers, profit makers and stimulators of the economy and as such should be constrained by Government enforced doctrines of responsibility.

 

Unfortunately, without tough sanctions warding against the potential white collar criminal from abusing their position in society, this sense of responsibility and the reciprocal trust and confidence that they would receive from society disappears. As it stands, leniency for white collar offenders has been all too common and is due to a number of factors:

  • Low Visibility: because the white collar crime is by definition done “in the course of his occupation” it is often very difficult to detect these criminal activities[3]. In addition, the people in these positions often have expertise that can disguise criminal activity as legitimate business activity[4].
  • Complexity: Enforcement agencies are always hard pressed to successfully prosecute these offenders[5] because even if the crimes are detected, the complexity and difficulty of tracing these crimes back to the particular offender often results in a fruitless search[6].
  • Diffusion of Victimization: Often these crimes result in no single identifiable victim. A blue collar thug who mugs an octogenarian for 5 dollars has a readily identifiable victim which automatically results community condemnation. On the other hand, if McDonalds waters down its soft drink to illegally reap an extra 5 cents profit out of every customer, society cannot as readily see any great victimization and thus the condemnation is not anywhere near as great for McDonalds as there is for the thug, even though the benefit to McDonalds would far outstrip the benefit the thug enjoyed from committing their relative crimes[7].
  • The Status Shield: The archetypal white collar criminal will often enjoy greater court empathy than would the blue collar criminal because of the similar upbringing and background which typically characterizes people who comprise both the court benches and the positions of influence which these white collar criminals populate. In addition, the white collar criminal would often be able to afford sophisticated legal counsel who by their standing with the court can often influence the court towards leniency[8].

 

It is now necessary to demonstrate that white collar criminals are being treated leniently by the legal structures in our society. This is fairly simple to do and the white collar bias is prevalent in all the levels and spheres of our legal institutions.

 

Enforcement

 

It is an economic reality that our enforcement agencies are the victims of resource constraints. Devoting these limited resources to the detection and prosecution of sophisticated white collar crimes is often considered inefficient. As has already been discussed, these crimes are hard to detect in the first place and even harder to successfully prosecute[9]. This means that these enforcement agencies prefer to concentrate what resources they have into offences which are easier to detect, less costly and difficult to prosecute[10], and in any case are more salient amongst the general population – and these crimes are invariably referred to as ‘blue collar crime’. It is clear that the presence in a more visible sense of potential blue collar criminals, typically lower class, unemployed people ‘on the streets’ means that they are there to be stopped, searched and arrested[11] and that this provides an obviously cheaper and more efficient avenue the enforcement agencies can pursue for optimum results.

 

The point about population salience is also important for two reasons: One is that the law enforcement agencies are under pressure to be seen effectively fighting the crime problem for public perception and funding purposes; the other being that Governments often direct these agencies to combating these more salient forms of criminal behaviour for political purposes[12].

 

To exacerbate matters, the knowledge that even if prosecuted, enforcement agencies would be combating clever legal defence teams and large legal fighting funds and inevitably means that prosecution is riskier, more costly, more difficult to achieve and as a result, often deters “agencies from undertaking lengthy investigations where evidence is difficult to obtain”[13] before they have even looked. This is a stark example of how effective deterrence can be and will be looked at in more detail when sentencing of white collar crime is discussed.

 

Of further note is the existence of a large school of thought that being lenient is not only resource efficient, it actually produces the best results in any case. The school of thought typically argues that “high standards can be better achieved where businesses co-operate with agencies. Such co-operation is felt to be more forthcoming if agencies and officers are respected and seen as helpful experts rather than interfering and threatening law enforcement officers.”[14] The contrast between this concept of policing to that which prevails on the streets when dealing with potential blue collar offenders is appallingly stark. This polite exchange between enforcement agencies has led many officers, when the (often difficult to detect) white collar crimes are occasionally discovered, to attribute these crimes to ignorance and to categorize them as ‘indiscretions’ or ‘bad house-keeping’ and therefore the non-compliance of these laws are viewed as technical rather than criminal matters[15].

 

Therefore, from an enforcement perspective it is clear that whether it is through resource constraints, institutional deterrence, or polite and ‘co-operative’ enforcement behaviour, our society is in many cases lenient on white collar crime in the form of not even detecting and prosecuting the majority of white collar crime that occurs in the first place[16]. As Croall succinctly concludes: “It is very likely that selective enforcement does lead to under-representation of the crimes of larger concerns and the offences of high status offenders amongst convictions, despite the fact their crimes may be more serious [both in terms of damage done to society, and individual moral culpability]”[17]

 

Legislation

 

From a legislative standpoint, white collar crime here too, seems to be favourably treated, especially in comparison to equivalent blue collar crime. This is in large part driven by the agendas of the media and in turn grassroots voter opinion (I do not propose to claim which is the chicken and which is the egg – at least not in this essay). A good example of this was the large media and public outcry regarding the levels of home invasion crimes in Western Australia[18]. Unsurprisingly, this then became a populist political issue and the Government introduced the mandatory “three strikes laws”, and also directed the police to target the apprehension of these types of criminals[19]. Automatic and lengthy prison terms await the blue collar repeat offender of home invasion crimes. No such fate awaits any form of white collar criminal.

 

At the other extreme, with the large amounts of wealth and influence which are inherent in the white collar world, many powerful players (and in particular large corporations), unlike conventional criminals, have sufficient political muscle to influence the law itself, either by lobbying to secure the repeal of laws they dislike or to prevent new and tougher laws being enacted in the first place[20]. A classic example of this happening is when in 2002, the American manufacturing industry successfully encouraged the Bush administration to relax pollution controls, specifically:

  • Companies will be given greater flexibility to modernize or expand without having to install new pollution controls, although the changes may lead to greater air emissions.
  • Plants that have installed state-of-the-art pollution controls will be assured they will not be required for 10 years to install more effective equipment even if they expand or change operations in a way that results in greater pollution.[21]

This type of powerful lobbying is also prevalent in Australia[22].

This demonstrates that at a legislative level, due to social and political pressures, the trend has been for laws to get increasingly tougher on socially salient forms of blue collar crime, while the legislative activity towards white collar crime remains luke-warm at best.

The Judiciary

 

As has already been alluded to, there exists major inequality between the judicial treatment of white collar and blue collar criminals. There are a number of reasons for this. Firstly, the deceptively “trivial” appearance of many white collar crimes, due to the absence of any violence and the diffusion of victimization (as has been discussed), coupled with the fact that many of these white collar criminals are ‘first time’ offenders, and are armed with expert defences claiming lost reputations are “punishment enough”[23], all conspire to predispose the court towards lenient treatment. This is despite the fact that often these crimes only need to be committed once in a lifetime due to massive potential windfalls associated with white collar crime, in addition to the fact that white collar crimes are difficult to detect meaning ‘first time caught’ does not necessarily mean ‘first time offender’.

 

These influences also exist for the judiciary when against all odds a conviction has been successfully attained. There are many pre-judgment influences which give white collar criminals a disproportionate advantage. Wealthier offenders can afford more sophisticated legal teams whom, where defences are available, vigorously pursue them[24]. It seems that the greater empathy for the client with a typically similar background to the court and the greater understanding from the more eloquent legal counsel also tends to minimize the sanctions against the white collar criminal if, indeed, there is any at all. This sentiment is typified by an enforcement officer who worked on prosecuting those involved in the Medicaid Provider Fraud in the United States:

I have had a sense for a long time that the courts quite typically identify with white collar criminals…[a judge] looks at this guy and says, “You lived this white collar life, but you stepped over the line. You have no prior record, but you have been convicted. Do I want to send you to the dungeon with these other felons?” The reaction is, “No, I’m going to slap you on the wrist and hope that will be enough for you.”[25]

 

It has been established that for a plethora of reasons, white collar crime, at least in a relative sense to blue collar crime, is leniently dealt with in all the three important law and order institutions in our society. It is now time to turn to the white collar crimes themselves; what damage do these crimes wreak on society, who commits these white collar crimes, and how the law should deal with them in the future.

 

The White Collar Crime

 

It is timely to recap the Sutherland definition of white collar crime to refine our analysis of the act itself. His definition limited its classification to those crimes committed by persons of ‘respectability and high social status in the course of their occupations’. This has two components – the characteristics of the criminal, and the requirement that it must be performed in the course of his occupation. As has already been demonstrated, the second component automatically makes white collar crime harder to detect – because they are performed in the course of their occupations: at a glance the criminal behaviour would seem legitimate. Because these crimes are harder to detect, as a matter of logic, they are also easier to commit without consequences. It is because of these factors that many believe that white collar crime is more prevalent[26] and, therefore, at least by virtue of this greater quantity of crime, has a greater and more detrimental impact on society than conventional crime[27].

 

Factors including the difficulty of detection, the ability of articulate defence lawyers and the more readily empathetic judiciary, white collar crime has often tended to be interpreted as economically rational behaviour[28]. It seems that it is an almost mandatory development in one’s character if economic success is to be assured. Box points out that, “numerous corporate executives, having already responded to the situational demands necessary for career mobility within an organisation by displaying sufficient degrees of competitive ambition, shrewdness and moral flexibility will experience a further development of those characteristics when they respond to the relatively unaccountable and unconstrained power of being at or near the top of a large corporation. They are then in a high state of preparedness to commit corporate crime[29]”. This is supported by profiling studies which conclude that managers who prioritize profit maximisation (as the constitution of your average corporation dictates) were more likely to engage in unethical practices[30].

 

This business culture devoid of ethics and reinforced by legislative leniency was at least in the context of insider trading recognised by the Hawke Labor Government. In the speech before tabling the 1989 “Griffiths report”, Mr AG Griffiths and Member for Maribyrnong concluded that, “the overwhelming body of evidence provided to the committee leaves little room for doubt that the corporate spiders who prey on ordinary shareholders are currently able to act with a degree of confidence that insider trading can be embarked upon with little risk of prosecution or conviction.”[31] While the law as a consequence of these findings improved in relation to insider trading[32], the general climate of leniency and unfettered criminal behaviour remains a problem with most other white collar crimes.

 

These temptations and pressures on the white collar workforce need to be curbed for the common good of social justice, and the efficacy and efficiency of the economy. The present system of punishment appears to be insufficient in deterring these criminal behaviours. Low fines have no deterrent value at all – the cost of the penalty is less than the gain from committing the offence (and that is not even taking into account the comparatively low chance of being caught in the first place)[33]. When the crimes are serious enough to warrant a jail sentence, it has been seriously questioned whether the sentences are too lenient to be appropriate and effective. The New South Wales Law Reform Commission conducted a report on the very issue of sentencing leniency for corporate criminals[34]. For Government keen to improve market confidence and economic efficiency, increasing the deterrent effect of punishments for white collar crime is to be encouraged. This also has the concurrent advantage of improving justice for law abiding members of the white collar sphere[35], justice for greater society that benefits from a society with lower rates of crime, and justice for other criminals who are punished to a greater relative degree than are white collar criminals, for the wrong they commit.

 

Sentencing Theory

 

Stiff criminal sentences have their advantages, and this is especially applicable to white collar criminals:

 

Express Public Censure – Criminal sanctions are society’s most effective vehicle to unequivocally express their disapproval of certain behaviour[36]. Given that it is relatively difficult to secure a conviction for white collar criminals, the opportunity to express such disapproval becomes even more important. In addition, given that white collar criminals are, according to Sutherland’s definition, of a high social standing then the subsequent loss of reputation of being tried, convicted and sentenced as a criminal looms as the greatest deterrent to potential white collar offenders[37].

 

Reinforcement of Societal Values – One function of the law is to evoke standards of acceptable behaviour and to reaffirm core societal values:

“The public prosecution of violations of the criminal law is a visible demonstration of the State’s will to protect certain values and an affirmation that the community continues to adhere to those values”[38]

An obvious argument against this philosophy in the white collar crime context is that given the widespread incidence of white collar crime, these ‘societal values’ which abhor white collar crime are a myth – making the severe punishment of these crimes entirely inappropriate. However this argument is immediately countered by the tough stance the law takes on marijuana offences. If the theory is good enough for marijuana users it is good enough for the white collar criminal.

 

Deterrence – (both general and specific). General deterrence refers to the motive of punishment to discourage the community at large from committing such crime. Specific deterrence on the other hand refers to the discouragement of the actual perpetrator of the crime to re-offend[39]. Courts have long recognised deterrence as one of the main purposes of criminal punishment[40]. Judges have said that they view corporate criminal activity very dimly and recognise that deterrence is an important consideration in the sentencing process, especially given that corporate offences are difficult to detect and the potential for substantial financial and other harm that can be inflicted on the public[41].

 

Because deterrence is claimed to be a critical factor in criminal sentencing, the next question that needs to be asked is what severity is needed to effectively deter the potential white collar criminal.

 

Jeremy Bentham provides the basis for which deterrence has become a keystone to sentencing theory: “Pain and pleasure are the great springs of human action. When a man perceives or supposes pain to be the consequence of an act, he is acted upon in such a manner as tends, with a certain force to withdraw him from the commission of that act.”[42] Bentham also argues that general deterrence ought to be the chief end of punishment. Viewing the criminal act in a vacuum and punishing accordingly, would only be “adding one evil to another”[43]. This is why the punishment’s use in deterring society from following the path that the white collar criminal has chosen is the source of the punishment’s moral justification – the punished criminal becoming an “indispensable sacrifice to the common safety”[44]. In this sense, even when a harsh penalty for the odd occurrence when the white collar criminal does get caught, tried and convicted, although seemingly arbitrary and unfair to the individual itself, is justified for the common good in what the sentence serves for the community.

 

Richard Posner in his economic analysis of the law claims it is better to have harsh punishments for crimes with a low probability of detection and conviction, even though it seems when viewed in isolation to be “savagely cruel”[45]. In his analysis, people will perform crimes (and indeed any action) if the expected benefits outweigh the expected costs[46]. It is evident that while the white collar criminal is taking a risk by committing the act, it is not a sufficient risk given the notorious difficulty of detection, conviction and relatively lenient punishment. Given that without a great increase in resources, the white collar crimes will remain just as difficult to detect and convict, the only avenue left for the State to increase the potential cost of the committing the crime is to increase the punishment significantly.

 

Ursula LeGuin in her story[47], playing on the idea of the scapegoat in Dostoyevsky’s Brothers Karamazov, describes a place called Omelas where everything was perfect, there was no hunger, no sickness, and no want for anything, but this place earnt its perfection by the absolute abuse and oppression of one single, wretched individual. LeGuin’s point is that the cost of the one does not justify the massive benefit it brings to society. This is effectively a philosophical argument against harsh penalties for the unluckily caught white collar criminals who represent only a small proportion of all the people who actually commit these crimes. There is however a distinction that can be made between the two situations and Posner also recognises this. In Leguin’s Omelas, the victim was born into his unfortunate situation; whereas the white collar criminal has to positively volunteer to risk being ‘sacrificed’, by committing the crime in the first place. As Posner succinctly states, “The criminal justice system is voluntary: you keep out of it by not committing crimes.”[48]

 

Sensible generalizations about the archetypal white collar criminal also provide further argument for harsher penalties. First, the criminal, by definition, must be in some sort of white collar occupation. This requirement makes it clear that by and large these criminals have an educated background and therefore their can be assumed a relatively high intelligence on the part of the white collar criminals. To further the point, these crimes are often complex to perform, and by virtue of their expertise and experience, require a higher than average rational calculus to decide to perform them. The greater the degree of reasoning that goes into the committing of the crime also increases the chances that at some point in the decision making process the criminal can be deterred from the act if there is sufficient reason for him to do so. It is clear that many white collar criminals are prepared to take the risk of the current penalties, but if the penalties were drastically increased in severity, despite the low probability of detection and prosecution, would any rational white collar criminal take the risk? Most of these white collar criminals by virtue of their occupation would be far too comfortable with their legal income to risk a (in an individual sense) disproportionately severe penalty to illegally increase it. This view is borne out by the statistics. For example, in his study of black market violations during World War II, Clinard found that the vast majority of businessmen surveyed said that “the penalty of imprisonment” was the one they most feared[49]. Sixty five percent of food wholesalers also chose imprisonment as the most effective deterrent to potential black market crime[50].

 

In addition, due to the fact they are employed and presumably adequately renumerated for what they do; they certainly easily have the means to live life within the bounds of the law. These people positively make a decision to break the law, without having a need to. In a wider context this refers to the fact that, generally, white collar criminals have a relatively low degree of commitment to a life of crime – their identity is not that of a professional criminal – people of this persuasion are more likely to be influenced by the threat of criminal sanction[51]. Chambliss also dubs these sorts of crimes as “instrumental”, (as opposed to “expressive”) and this term essentially refers to the lower emotional reasons and higher rational calculus required to commit these sorts of crimes[52]. Instrumental crimes, not surprisingly, are much less resistant to deterrence than are expressive crimes.

 

Not only does this make the crime potentially easier to deter than blue collar crime (crimes of passion, desperation – expressive crimes etc) but in a sense also makes the perpetrator of these white collar crimes more culpable. The unnecessary nature of the crime makes the committing of that crime all the more gratuitous. If the punishment is to fit the crime, satisfying the retributive requirement as outlined in Halsbury’s Laws of Australia[53] then the punishment should be equally gratuitous. An arbitrarily, disproportionately harsh and consequently gratuitous sentence would therefore be appropriate[54]. This would also placate the utilitarian founder of deterrence theory, 16th century Italian Cesare Beccaria who expounded that, “in order for punishment not to be, in every instance, an act of violence against one or of many against a private citizen, it must be essentially public, prompt, necessary, the least possible in the given circumstances,proportionate to the crimes, dictated by the law.”[55] While at a superficial glance an extremely harsh penalty would appear disproportionate, when viewed as a measurement of balancing gratuity, the punishment is perfectly appropriate[56]. There is no greater breach of morality than a crime that is needlessly and greedily committed, only to make an already perfectly comfortable life slightly more affluent at the expense of other people and society at large.

 

In any case, deterrence theory is “not concerned with the convict”[57], so in this sense we can ignore the personal injustice a harsh sentence causes the convicted criminal. Deterrence involves “sending a message” to society, and according to classical criminological theory, when the certainty, celerity and severity of punishment increase, the crime rate will decrease. It is acknowledged that for white collar crimes, increasing the certainty and celerity of the punishment is extremely difficult to achieve for a plethora of reasons. The only short term viable option left to the legislator is to increase the severity of the punishment dramatically to make up for the intolerably low levels of certainty and celerity. The alternative is to leave the critical mass of potential white collar criminals undeterred from committing these crimes which are –when seen as a whole – a debilitating problem for society. Clearly then, it seems that justice for larger society is enhanced by increasing the severity of the punishment for these sorts of crimes. In addition to all of this, if white collar crimes remain undeterred, the culture in these industries will as Box has foreshadowed[58] become increasingly unscrupulous, and as a result, the average white collar criminal will necessarily have a greater degree of commitment to a life of crime than was found by Chambliss[59], thus making white collar crime even harder to deter for society in the future. In short, the theory of utilitarianism and social justice dictates that punishments need to increase in severity to ensure that white collar crime does not become permanently endemic in wider society.

 

It is recognised and accepted that all crime should be punished. It is the only way to ensure a society remains functional and remains unimpeded by the spectre of anarchy. However, some crimes are highly resistant to deterrence and will happen regardless of the punishment. Murders committed in the ineluctable heat of passion are a perfect example of this[60]. It is therefore senseless to be arbitrarily severe in the punishment of these crimes because the deterrent effect is nil. If deterrence theory is to remain central to our understanding of crime and punishment[61], then the crimes which should be most heavily punished are those which are at present most leniently treated and which will be more sensitive to the threat of severe punishment. The white collar crime; with the middle class employed individual, whom for the slight improvement in economic comfort considers to commit a crime, the low general commitment to crime and the necessarily gratuitous nature of the crime when committed, makes it the perfect target for legislators seeking to create a positive deterrent effect. If these crimes were deterred by a significant degree, this would be a major victory for the utilitarian society, for social justice, and equality for all.

 

Bibliography

 

  1. Croall H, White Collar Crime, 1992 Open University Press
  2. Sutherland EH (1949) White Collar Crime. New York, Holt, Rinehart & Winston
  3. Shapiro S (1990) “Collaring the Crime” American Sociological Review55 June p 346
  4. Clarke M (1990) Business Crime: Nature and Control Cambridge, Polity Press.
  5. Braithwaite and Geis (1982) “On Theory and Action for Corporate Crime Control” Crime and Delinquency April: p 292
  6. Box (1983) Power, Crime and Mystification London, Tavistock.
  7. Tillman and Pontell (1992) “Is Justice Collar-Blind?: Punishing Medicaid and Provider Fraud” Criminology vol. 30(4): p 547
  8. Mann (1985) Defending White Collar Crime New Haven and London, Yale University Press: p 236.
  9. Smith D and Gray J (1985) Police and People in London, Aldershot, Gower.
  10. Cranston (1979) Regulating Business London, MacMillan
  11. Hutter (1988) The Reasonable Arm of the Law? Oxford, Clarendon Press.
  12. Morgan N, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?” Criminal Law Journal, 24(3): 164.
  13. USA Today 31st December, 2002.
  14. Green Left Weekly Issue 109.
  15. R102 “Sentencing: Corporate Offenders”, NSWLRC (June 2003).
  16. Braithwaite and Pettit (1990) “Not Just Deserts: A Republican Theory of Justice” Oxford, Clarendon Press.
  17. Clinard (1983) “Corporate Ethics and Crime” Beverly Hills.
  18. Extract from HANSARD: “Fair Shares for All” 1989 – Mr AG Griffiths.
  19. The Griffiths Report (1989) Fair Shares for All: Insider Trading inAustralia House of Representatives: Standing Committee on Legal and Constitutional Affairs.
  20. L Friedman, “In defense of corporate criminal liability” (2000) 23 Harvard Journal of Law and Public Policy 833.
  21. V Khanna, “Corporate Criminal Liability: What Purpose Does it Serve?” (1996) 109 Harvard Law Review 1492.
  22. Canadian Law Reform Commission, Sentencing in Environmental Cases(Protection of Life Series, Study Paper, 1985).
  23. Halsbury’s Laws of Australia : Volume 9.
  24. Director of Public Prosecutions (Cth) v El Karahni (1990) 21 NSWLR 310.
  25. Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610.
  26. Bentham “The Principles of Penal Law” The Works of Jeremy Bentham(J.Bowring ed. 1838-43).
  27. Von Hirsch & Ashworth eds. “Principled Sentencing: Readings on Theory and Policy” (1998) Hart Publishing, Oxford.
  28. LeGuin “The Ones Who Walk Away from Omelas” (1973) New Dimensions III.
  29. Clinard (1952) The Black Market.
  30. Chambliss W (1975) Criminal Law in Action Santa Barbara, Caifornia: Hamilton.
  31. Schlegel (1990) Just Deserts for Corporate Criminals Northeastern University Press, Boston, Massachusetts.
  32. Beccaria C (1963) On Crimes and Punishments. Trans. by H. Paolucci. Indianapolis: Bobbs Merrill.
  33. Vold, G (1979) Theoretical Criminology 2nd Ed. New York: Oxford University Press.
  34. Van Den Haag E (1975) Punishing Criminals: Concerning a Very Old and Painful Question. New York: Basic Books.

[1] Croall H, White Collar Crime, 1992 Open University Press, p 4.

[2] Sutherland EH (1949) White Collar Crime. New York, Holt, Rinehart & Winston, p 9.

[3] Shapiro S (1990) “Collaring the Crime” American Sociological Review 55 June p 346.

[4] Clarke M (1990) Business Crime: Nature and Control Cambridge, Polity Press.

[5] Braithwaite and Geis (1982) “On Theory and Action for Corporate Crime Control” Crime and Delinquency April: p 292.

[6] Shapiro S (1990) “Collaring the Crime” American Sociological Review 55 June p 350.

[7] Box (1983) Power, Crime and Mystification London, Tavistock.

[8] Tillman and Pontell (1992) “Is Justice Collar-Blind?: Punishing Medicaid and Provider Fraud” Criminology vol. 30(4): p 547; Mann (1985) Defending White Collar Crime New Haven and London, Yale University Press: p 236.

[9] Braithwaite and Geis (1982) “On Theory and Action for Corporate Crime Control” Crime and Delinquency April: p 292.

[10] Croall H, White Collar Crime, 1992 Open University Press, p 50.

[11] Smith D and Gray J (1985) Police and People in London Aldershot, Gower.

[12] For a recent example the “Three Strikes Laws” for home invasion offences.

[13] Croall H, White Collar Crime, 1992 Open University Press, p 52.

[14] Cranston (1979) Regulating Business London, MacMillan, p 111.

[15] Hutter (1988) The Reasonable Arm of the Law? Oxford, Clarendon Press.

[16] Actual figures to prove this are of course by definition impossible because these crimes were not detected.

[17] Croall H, White Collar Crime, 1992 Open University Press, p 53.

[18] Morgan N, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?” Criminal Law Journal, 24(3): 164.

[19] Morgan N, “Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?” Criminal Law Journal, 24(3): 179.

[20] Croall H, White Collar Crime, 1992 Open University Press, p 70.

[21] “Nine States Sue to Block Relaxation of Clean Air Rules” USA Today 31stDecember, 2002.

[22] Hearman, (1993) “Manufacturers Target Environmental Regulations” Green Left Weekly Issue 109, p 7.

[23] Croall H, White Collar Crime, 1992 Open University Press, p 15.

[24] Mann (1985) Defending White Collar Crime New Haven, Yale University Press p 236.

[25] Tillman and Pontell, “Is Justice Collar-Blind? : Punishing Medicaid Provider Fraud” 1992 Criminology vol. 30(4): p 564.

[26] Box (1983) “Power, Crime and Mystification” London, Tavistock.

[27] Braithwaite and Pettit (1990) “Not Just Deserts: A Republican Theory of Justice” Oxford, Clarendon Press.

[28] Croall H, White Collar Crime, 1992 Open University Press, p 58.

[29] Box (1983) “Power, Crime and Mystification” London, Tavistock p 41.

[30] Clinard (1983) “Corporate Ethics and Crime” Beverly Hills, Sage: pp 136-7.

[31] Extract from HANSARD: “Fair Shares for All” 1989 – Mr AG Griffiths.

[32] See the much publicised Renee Rivkin affair to find proof of this.

[33] Croall H, White Collar Crime, 1992 Open University Press, p 113.

[34] R102 Sentencing: Corporate Offenders NSWLRC (June 2003) p 10.

[35] The Griffiths Report (1989) Fair Shares for All: Insider Trading inAustralia House of Representatives: Standing Committee on Legal and Constitutional Affairs, p 13.

[36] L Friedman, “In defense of corporate criminal liability” (2000) 23 Harvard Journal of Law and Public Policy 833.

[37] V Khanna, “Corporate Criminal Liability: What Purpose Does it Serve?” (1996) 109 Harvard Law Review 1492.

[38] Canadian Law Reform Commission, Sentencing in Environmental Cases(Protection of Life Series, Study Paper, 1985) at 1.

[39] Halsbury’s Laws of Australia : Volume 9 (251-501)

[40] Director of Public Prosecutions (Cth) v El Karahni (1990) 21 NSWLR 310 at 377.

[41] Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610.

[42] Bentham “The Principles of Penal Law” The Works of Jeremy Bentham(J.Bowring ed. 1838-43), p 396.

[43] Ibid.

[44] Ibid.

[45] Von Hirsch & Ashworth eds. “Principled Sentencing: Readings on Theory and Policy” (1998) Hart Publishing, Oxford: p 63.

[46] Ibid. p 62.

[47] LeGuin “The Ones Who Walk Away from Omelas” (1973) New Dimensions III.

[48] Von Hirsch & Ashworth eds. “Principled Sentencing: Readings on Theory and Policy” (1998) Hart Publishing, Oxford: p 63.

[49] Clinard (1952) The Black Market  p 59-60.

[50] Clinard (1952) The Black Market  p 243-245.

[51] Chambliss W (1975) Criminal Law in Action Santa Barbara, Caifornia: Hamilton, p 408.

[52] Ibid.

[53] Halsbury’s Laws of Australia : Volume 9 (251-501)

[54] Schlegel (1990) Just Deserts for Corporate Criminals Northeastern University Press, Boston, Massachusetts, p 20.

[55] Beccaria C (1963) On Crimes and Punishments. Trans. by H. Paolucci. Indianapolis: Bobbs Merrill, p 9.

[56] In an intuitive sense, the sense of ‘just deserts’ is more comfortably satisfied: Vold, G (1979) Theoretical Criminology 2nd Ed. New York: Oxford University Press.

[57] Van Den Haag E (1975) Punishing Criminals: Concerning a Very Old and Painful Question. New York: Basic Books, p 60.

[58] Box (1983) “Power, Crime and Mystification” London, Tavistock.

[59] Chambliss W (1975) Criminal Law in Action Santa Barbara, Caifornia: Hamilton, p 408.

[60] Chambliss W (1975) Criminal Law in Action Santa Barbara, Caifornia: Hamilton, p 406.

[61] See R102 Sentencing: Corporate Offenders NSWLRC (June 2003) p 33 for proponents.

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