The Yale White-Collar Crime Project: A Review and Critique

David T. Johnson; Richard A. Leo

doi:10.1111/j.1747-4469.1993.tb00647.x

1 Elliott Currie, Confronting Crime (New York: Pantheon, 1985). See also James Shriver, “Frustrated by Criminal Justice System, Public Demands Harsher Penalties,”Gallop Report, Rept. No. 285, June 1989.Google Scholar

2 Braithwaite, John, “White-Collar Crime,” 11 Ann. Rev. Soc. 3 (1985).CrossRef Google Scholar

3 Roger Cotterrell, The Sociology of Law: An Introduction 8 (London: Butterworths, 1984).Google Scholar

4 Marshall Clinard & Pete Yeager, Corporate Crime (New York: Free Press, 1980).Google Scholar

5 In an article written subsequent to the publication of Wayward Capitalists, Susan Shapiro examines the conceptual difficulties underlying the term “white-collar crime” and its various usages, while suggesting an alternative definition based on the concept of trust. See Shapiro, Susan, “Collaring the Crime, Not the Criminal: Reconsidering the Concept of White-Collar Crime,” 55 Am Soc. Rev. 346 (1990).Google Scholar

6 Edwin Sutherland, White-Collar Crime: The Uncut Version (New Haven, Conn.: Yale University Press, 1983).Google Scholar

7 But see Braithwaite, John, “Poverty, Power, White-collar Crime, and the Paradoxes of Criminological Theory,” 24 Australian & New Zealand J. Criminology 40 (1991). Braithwaite argues (at 42) that inequality (based on class, race, age, and gender) causes both predatory street crime and white-collar crime by “decreasing the goods available for use by the poor to satisfy needs; and increasing the goods available to rich people (and organizations) who have needs satisfied, but whose accumulation of goods for exchange constitutes criminal opportunities to indulge greed.”.Google Scholar

8 James W. Coleman, The Criminal Elite 5 (2d ed. New York: St. Martin's Press, 1989) (“Coleman, Criminal Elite”).Google Scholar

9 Tappan, Paul, “Who Is the Criminal 12 Am. Soc. Rev. 96 (1947).CrossRef Google Scholar

10 Id. at 100.Google Scholar

11 But compare Jack Katz, who argues that official white-collar crime statistics inadequately measure the real incidence and prevalence of white-collar crime, and always will. Jack Katz, Seductions of Crime 318 ff. (New York: Basic Books, 1988) (“Katz, Seductions”). See also our sec. IV below.Google Scholar

12 Herbert Edelhertz, The Nature, Impact, and Prosecution of White-Collar Crime (Washington, D.C.: Government Printing Office, 1970) (“Edelhertz, Nature of White-collar Crime”).Google Scholar

13 Id. at 3.Google Scholar

14 Coleman, , Criminal Elite 3.Google Scholar

15 Shapiro distinguishes between violations of impersonal, institutional, and fiduciary trust. See Shapiro, , 55 Am Soc. Rev.; see also Shapiro, Susan P., “The Social Control of Impersonal Trust,” 93 Am J. Soc. 623 (1987).Google Scholar

16 Shapiro, , 55 Am. Soc. Rev. at 357 ff. See also Braithwaite, 11 Ann. Rev. Soc. at 3.Google Scholar

17 Id. at 5.Google Scholar

18 See John Braithwaite, Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989) (“Braithwaite, Crime”); see also Coleman, Criminal Elite (cited in note 8).CrossRef Google Scholar

19 Michael Gottfredson and Travis Hirschi emphasize that the individual propensity or motivation to commit crime is distinct from the commission of crime itself. While an analysis of former focuses on the characteristics of people likely to engage in criminal acts (e.g., an aggressive personality, membership in a gang, or low self-control), the latter focuses on the properties or requirements of criminal acts (e.g., a motivated offender, absence of a capable guardian, and a suitable target). Gottfredson and Hirschi argue that criminologists have artificially separated the study of crime and criminality, which Gottfredson and Hirschi attempt to bring together in their general theory of crime. See Michael R. Gottfredson & Travis Hirschi, A General Theory of Crime chs. 1–5 (Stanford, Cal.: Stanford University Press, 1990) (“Gottfredson & Hirschi, General Theory”).Google Scholar

20 See Sanford H. Kadish, Blame and Punishment: Essays in the Criminal Law ch. 4 (New York: Macmillan Publishing Co., 1987).Google Scholar

21 Kenneth Mann has recently argued for a “middleground jurisprudence” to inform changes in the prosecution and sanctioning of crime (mostly white-collar crime) that are eroding the traditional distinctions between criminal and civil actions. Mann argues that punitive civil sanctions are appropriate in the prosecution of white-collar crime because they encompass both the procedural efficiency of tort sanctions and the punitiveness of criminal sanctions. See Mann, Kenneth, “Punitive Civil Sanctions: The Middleground between Criminal and Civil Law,” 101 Yale L.J. 1795 (1992).CrossRef Google Scholar

22 See Gottfredson & Hirschi, General Theory; see also Braithwaite, Crime.Google Scholar

23 Wheeler, Stanton & Rothman, Mitchell Lewis, “The Organization as Weapon in White-collar Crime,” 80 Mich L. Rev. 1403 (1982).CrossRef Google Scholar

24 Braithwaite, , 11 Ann Rev. Soc. at 19 (cited in note 2).Google Scholar

25 Id.Google Scholar

26 Christopher Stone, Where the Law Ends (New York: Harper & Row, 1975).Google Scholar

27 Kip Schlegel, Just Deserts fur Corporate Criminals (Boston: Northeastern University Press, 1990).Google Scholar

28 Wheeler, & Rothman, , 80 Mich. L. Rev. at 1405.Google Scholar

29 Similarly, Wheeler and Rothman (id.) argue that there are not two but three main types of white-collar offenders: individual offenders, occupational offenders, and organizational offenders. The organization has become a tool by which white-collar offenders obtain money from victims.Google Scholar

30 Cressey, Donald, Review, 15 (4) Contemp. Soc. 627 (1986).Google Scholar

31 Contrast this with Roberta Karmel, Regulation by Prosecution: The SEC vs. Corporate America (New York: Simon & Schuster, 1982) (“Karmel, Regulation”).Google Scholar

32 Id.Google Scholar

33 See Nader, Laura, “Enforcement Strategies and the Catch They Yield at the SEC,” 99 Harv. L. Rev. 1362 (1986).CrossRef Google Scholar

34 To be sure, Shapiro does note the difficulties of conducting ethnographic research on white-collar crime enforcement practices (at 194–96).Google Scholar

35 For an earlier commentary on this book in the predecessor to this journal, see Schneyer, Ted, “Getting from ‘Is’ to ‘Ought’ in Legal Ethics: Mann's Defending White-collar Crime ,” 1986 A.B.F. Res. J. 903.Google Scholar

36 Malcolm Feeley, The Process is the Punishment (New York: Russell Sage Foundation, 1979); see also Abraham Blumberg, “The Practice of Law as a Confidence Game,” 1 Law & Soc'y Rev. 15 (1967). For a contrary view, see Lisa McIntyre, The Public Defender: The Practice of Law in the Shadow of Repute (Chicago: University of Chicago Press, 1987).Google Scholar

37 David Weisburd et al., Crimes of the Middle Classes (reviewed here and cited throughout as “WWWB”).Google Scholar

38 See Jack Katz, “The Social Movement against White-collar Crime,”in Egon Bittner & Shldon Messinger, eds., 2 Criminology Review Yearbook 160–84 (Beverly Hills, Cal.: Sage Publications, 1980).Google Scholar

39 For example, Mann argues (at 236): “It would thus be an egregious error to say that the defense advocacy described in these pages is essentially a reflection of wealth of the clients of the attorneys studied.”.Google Scholar

40 See John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation, 1982).Google Scholar

41 See Powell, Michael, “Defending White-Collar Crime” (Book Review), 94 Am. J. Soc. 1257 (1988).Google Scholar

42 For an earlier commentary on this book in Law and Social Inquiry, see Heumann, Milton, “Criminal Sentencing,” 15 Law & Soc. Inquiry 121 (1990).CrossRef Google Scholar

43 Marvin Frankel is perhaps the most visible proponent of this view. See his Criminal Sentences: Law without Order (New York: Hill & Wang, 1973). As Wheeler, Mann, and Sarat argue, “The most influential report on federal sentencing in the past two decades” was Frankel's Criminal Sentences: Law without Order. Frankel's account gives voice to four major points about federal sentencing: sentencing systems allow a vast amount of discretion; there are no agreed upon principles underlying the structure of sentencing; in the absence of agreed upon standards, judges will give vent to their own ideologies, sentiments, and values: and there is massive disparity in sentences. Moreover, “Most studies of the period came to conclusions similar to those reported in Frankel's book.” See Wheeler, Mann, & Sarat, Sitting in Judgment 9–10 (reviewed here and cited throughout as “WMS”). See also Anthony Partridge & William B. Eldridge, A Report to the Judges of the Second Circuit (Washington, D.C.: Federal Judicial Center, 1974); and Pierce O'Donnell, Michael J. Churgin, & Dennis E. Curtis, Toward a Just and Effective Sentencing System (New York: Praeger, 1977).Google Scholar

44 Id. See ch. 6. See also Heumann, , 15 Law & Soc. Inquiry.Google Scholar

45 Id. at 167. See also Franklin Zimring & Richard Frase, The Criminal Justice System 876–77 (Boston: Little, Brown, 1980) (“Zimring & Frase, Criminal Justice System”) (describing how often judges agree about whether to imprison and for how long).Google Scholar

46 Heumann, , 15 Law & Soc. Inquiry, argues that a fourth factor further helps explain disparity in sentence outcomes. At the time of sentencing, judges disagree about how much of the sentence offenders will actually serve, since “real time served” corresponds imperfectly and unpredictably to the original sentence. Judges cannot easily or accurately anticipate how their sentence will be translated into real time, but often still attempt to do so by trying to take into account what the likely real time served will be. According to Heumann, the result is to further exacerbate sentence disparity across similar cases.Google Scholar

47 See generally D. T. Campbell & J. C. Stanley, Experimental and Quasi-experimental Designs for Research (Chicago: Rand-McNally, 1966).Google Scholar

48 We thank Franklin Zimring for pointing out the utility of this alternative research design.Google Scholar

49 Young, Deborah, Book review of Wheeler et al., 60 U. Cin L Rev. 135, 143–44 (1991).Google Scholar

50 At 189, WMS argue that the sentencing of common crimes “may not be as different as some might imagine.”.Google Scholar

51 Young, , 60 U. Cin. L Rev. Google Scholar

52 Id. See also WMS at 18 ff. (describing the distinguishing features of white-collar crime) and 189–92 (arguing that their model is generalizable to the sentencing of common crimes).Google Scholar

53 Young, , 60 U. Cin. L Rev. Google Scholar

54 But see also Alschuler, Albert W., “The Failures of Sentencing Guidelines: A Plea for Less Aggregation,” 11 U. Chi L Rev. 901 (1991). Alschuler argues (at 903) that “the pursuit of equality through sentencing guidelines often has yielded nonsense rules and inequalities,” and thus has perpetuated sentencing disparity.CrossRef Google Scholar

55 Wheeler, Stanton, Weisburd, David, & Bode, Nancy, “Sentencing the White Collar Offender: Rhetoric and Reality,” 47 Am. Soc. Rev. 641 (1982).CrossRef Google Scholar

56 We thank Franklin Zimring for suggesting the title to this section.Google Scholar

57 The subjects of these reports were convicted or sentenced during fiscal years 1976–78. Id. at xiv & 14 ff.Google Scholar

58 Peter Berger, Invitation to Sociology 38 (New York: Anchorday Press, 1963).Google Scholar

59 In terms of our typology, type 1 conceptualizations have been most common.Google Scholar

60 Wheeler, and Rothman, . 80 Mich. L. Rev. (cited in note 23).Google Scholar

61 Coffee, John C. Jr., “No Soul to Damn: No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment,” 79 Mich. L. Rev. 386 (1981). See also Part I of Russell Mokhiber, Corporate Crime and Violence (San Francisco: Sierra Club Books, 1988) (“Mokhiber, Corporate Crime”).CrossRef Google Scholar

62 Braithwaite, John, 11 Ann, Rev. Soc. at 4 (cited in note 2), has argued that the ‘who’ and ‘why’ questions of white-collar crime have provided only banal answers. But see James W. Coleman, who attempts to integrate the etiological and macro-sociological aspects of white-collar crime, theorizing that white-collar crime is caused by the conjunction of individual motivation and social opportunity in industrial capitalist societies that are driven by a culture of competition. Coleman, James W., “Toward an Integrated Theory of White-collar Crime,” 93 Am. J. Soc. 407 (1987).Google Scholar

63 Malcolm Feeley, Review of Weisburd et al., Contemp. Soc. (forthcoming).Google Scholar

64 Albert J. Reiss, Jr., & Albert Biderman, Sources on White-Collar Law-Breaking lxxxvi (Washington, D.C.: Government Printing Office, 1980).Google Scholar

65 William J. Maakestad, Proceedings of Symposium 87: White-Collar/Institutional Crime—Its Measurement and Analysis 10, 53–59 (Sacramento: California Office of the Attorney General, Bureau of Criminal Statistics and Special Services, 1987) (“Maakestad, White-Collar/Institutional crime”).Google Scholar

66 Coffee, , 79 Mich. L. Rev. 10, 43–49.Google Scholar

67 For a recent evaluation of this project, see Constable, Marianne, “What Books about Juries Reveal about Social Science and the Law.” 15 Law & Soc. Inquiry. 323 (1991).Google Scholar

68 See David Trubek, Joel Grossman, William Felstiner, & Austin Sarat, Civil Litigation Research Project Final Report 3 vols. (2d ed. Madison: Institute for Legal Studies, University of Wisconsin Law School, 1987).Google Scholar

69 See Stanton Wheeler, “Foreword,” in Shapiro at xi, arguing that since Sutherland first introduced the concept of white-collar crime more than 50 years ago, there has not been an opportunity for a sustained program of research in this field.Google Scholar

70 Consider Donald Black's classic definition of social control as social action that defines and responds to deviance. Donald Black, The Behavior of Law (Orlando, Fla.: Academic Press, 1976).Google Scholar

71 See Katz, Jack, “Legality and Equality: Plea Bargaining in the Prosecution of White-Collar and Common Crimes,” 13 Law & Soc'y Rev. 431 (1979). See also Shapiro, ch. 6; Susan Shapiro, “The Road Not Taken: The Elusive Path to Criminal Prosecution for White-Collar Offenders,” 19 Law & Soc'y Rev. 179 (1985).CrossRef Google Scholar

72 Id.Google Scholar

73 Shapiro, , Wayward Capitalists, and Shapiro, 19 Law & Soc'y Rev. Google Scholar

74 See Karmel, Regulation (cited in note 31).Google Scholar

75 Edelhertz, Nature of White-Collar Crime (cited in note 12).Google Scholar

76 John Coffee & Richard Gruner in Maakestad, White Collar/Institutional Crime 43–53 (cited in note 65).Google Scholar

77 See Ayers, Kenneth A. & Frank, James, “Deciding to Prosecute White-collar Crime: A National Survey of State Attorneys General,” 4(3) Justice Q. 425 (1987).CrossRef Google Scholar

78 Braithwaite, , Crime (cited in note 18). See also Benson, Michael L., “Emotions and Adjudication: Status Degradation among White-collar Criminals,” 7(3) Justice Q. 515 (1990).Google Scholar

79 Gottfredson & Hirschi, General Theory (cited in note 19).Google Scholar

80 For example, Mann unsatisfactorily describes how the ideology of the adversary system affects the thought and behavior of his attorneys at work, for his analysis is too brief to be persuasive (at 240–43). However, Ted Schneyer's review of Defending White-Collar Crime (1986 A.B.F. Res. J.; cited in note 35) more fully explores the ethical implications of white-collar defense work.Google Scholar

81 Braithwaite, John & Geis, Gilbert, “On Theory and Action for Corporate Crime Control,” 28 Crime & Delinq. 293–94 (1982). See also Coleman, , 93 Am. J. Soc. at 1, 8 (cited in note 62); see also Mokhiber, Braithwaite, Shapiro, Mann, Nader, , and Wheeler, et al. as cited above.CrossRef Google Scholar

82 Coleman, 93 Am. J. Soc. at 7. See also Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison (3d ed. New York: MacMillan Publishing Co., 1990).Google Scholar

83 For an opposing view see Gottfredson and Hirschi, General Theory ch. 9 (cited in note 19).Google Scholar

84 Of course, one function of arguing that the costs of white-collar crime are especially high is to justify the significance of one's work.Google Scholar

85 Norval Morris & Gordon Hawkins, The Honest Politician's Guide to Crime Control 38–39 (Chicago: University of Chicago Press, 1970).Google Scholar

86 Becker, Gary, “Crime and Punishment: An Economic Approach,” 76 J. Pol. Econ. 169, 171 (1968).CrossRef Google Scholar

87 Gillespie, Robert, “The Costs of Crime In Illinois,” 33 Ill. Bus. Rev. 6–7 (1976).Google Scholar

88 Charles E. Silberman, Criminal Violence and Criminal Justice ch. 1 (New York: Vintage Books, 1978).Google Scholar

89 Cullen, Francis T., Link, Bruce G., & Polanzi, Craig W., “The Seriousness of Crime Revisited: Have Attitudes toward White-Collar Crime Changed 20(1) Criminology 83–102 (1982).CrossRef Google Scholar

90 Of course, since estimates of aggregate costs depend on estimates of incidence and prevalence, the second type of ignorance contributes directly to the first. It is not clear, however, whether more valid and reliable statistics for white-collar crime would increase or decrease our estimates of its financial cost to society.Google Scholar

91 To be sure, the UCR is not a completely reliable measure of crime, for it fails to register crimes not reported to police agencies. This results in a greater underestimate for some crimes (e.g., robbery, burglary) than others (e.g., homicide, auto theft).Google Scholar

92 Albert J. Reiss, Jr., in Maakestad, White Collar/Institutional Crime 73–76 (cited in note 65).Google Scholar

93 Zimring & Frase, Criminal Justice System 87 (cited in note 45) (arguing that estimates of the costs of crime presuppose that we can reliably count the relative number of crimes committed within various crime categories).Google Scholar

94 Of course, this may be an inherently vexing task, since behavior that one society punishes as white-collar crime another society altogether private, if not exemplary. See James Q. Wilson, Thinking about Crime 6–7 (New York: Vintage Books, 1983).Google Scholar

95 Laura Shil Schrager & James F. Short, Jr., 1980. “How Serious a Crime? Perceptions of Organizational and Common Crimes,”in Gilbert Geis & Ezra Stotland, eds., White-Collar Crime: Theory and Research 14–31 (Beverly Hills, Cal.: Sage Publications, 1980).Google Scholar

96 Coleman, Criminal Elite (cited in note 8); see also Katz, Seductions 318 (cited in note 11).Google Scholar

97 See Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York: Octagon Books, 1978).Google Scholar

98 Coffee, 79 Mich. L. Rev. (cited in note 61).Google Scholar

99 Braithwaite, & Geis, , 28 Crime & Delinq. at 292 (cited in note 87).CrossRef Google Scholar

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The Yale White-Collar Crime Project: A Review and Critique

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