Sam Buell, Bernard M. Fishman professor of law, recently published a book entitled “Capital Offenses: Business, Crime and Punishment in America’s Corporate Age,” in which he explores the nuances of prosecuting corporate crime. The Chronicle’s Likhitha Butchireddygari spoke with Buell about the ideas he presents in his work.
The Chronicle: What is the main argument of your book?
Sam Buell: The main point of the book is that white-collar crime is not necessarily a black and white affair. It is complex and subtle and sometimes difficult to tell the difference between right and wrong. The reason that is because we as a society are fundamentally ambivalent about capitalism. We celebrate risk. We encourage it. We like aggressive economic behavior because it generates wealth. But, then we regret it and resent it when it produces harm.
TC: Where is the injustice in the prosecution of white collar crime?
SB: It’s important to understand that our criminal justice system—as we all well know these days—is flawed. There isn’t any reason to think that those flaws are somehow absent in the prosecution of corporate crime. The flaws can run in both directions. It’s the system that can be overly punitive and insufficiently effective, and that’s true with respect to all kinds of crime. The system is run by people. People are imperfect, and they make mistakes.
We need to have better systems for regulating people and getting them to do their jobs better, whether that’s the police or prosecutors when dealing with street crime or corporate crime. I don’t believe that there is any reason to think that systematically, the errors in the area of white collar-crime are skewed heavily in one direction or another, relative to the errors that get made in the system regarding street crime.
TC: Corporate crime, unlike street crime, has the ability to impact hundreds of thousands, even millions of people and can be responsible for mass harm. Should that be accounted for in the way that corporate crime is prosecuted?
SB: Well, yes and I think that it is because we have corporations as the subject of criminal prosecution. We don’t have an equivalent institutional level that we can direct the legal system at when it comes to street crime. There are obviously huge institutional questions associated with street crime that need to be addressed at the level of reform. But there’s nobody to prosecute to get at street crime. There’s not a bigger institution to prosecute. We can do that with corporate crime.
The problem we have is that there’s a limit to how severe we can be on these corporations because we are dependent on them. So, most of the time we don’t want to prosecute them and put them out of business at the same time. Some of this has to do with this problem of corporate scale that I’m talking about.
TC: Why aren’t more people jailed for white collar crimes?
SB: Well, we actually have more people being prosecuted for corporate crime than most people think. There’s actually quite a few prosecutions going on, and there are long sentences being given out. It’s certainly a misconception that there is a softness on white-collar crime. If anything, our criminal justice system has gotten harsher in the area of white-collar crimes. It’s gotten harsher in a lot of areas over the last 20 or 30 years. More things are criminal. The sentences are longer.
That said, I think that there’s a perception that that’s not the case because people tend to focus on the few, most high-profile cases of wrongdoing that involve the largest corporations, so the banks in the financial crisis for example. But, the larger the corporation and the more the problem seems to be a problem of management responsibility for the wrongdoing or for failing to present the wrongdoing, the harder it is to prosecute that because in our criminal justice system, we require individual guilt for prosecution, and it can be very difficult to establish that management of a very large corporation had the necessary involvement and awareness of the wrongdoing at lower levels for them to be able to be prosecuted. That’s certainly the case with the banks in the financial crisis.
TC: Are corporations people? Should they be treated as such?
SB: Well, it’s interesting because some of the same people who are very upset about corporate crime and feel that corporations are not treated harshly enough by the legal system also don’t like the fact that the Supreme Court has decided that corporations can be treated as individuals for the purpose of certain constitutional rights. My point would be that you can’t really have it both ways. Are they physically actually persons? No, of course not. To me, that is silly discussion.
The question is whether they can be treated legally as persons for the purpose of, for example, criminal prosecution. I think they should be allowed to be treated that way. In fact, they are in a legal system and have been for over a century. Well, if you can treat something as a proper object of prosecution, then you also have to figure out what legal rights it has. I’m not of the view that corporations should have all the same legal rights as individuals, but they need to have at least some legal rights, like the right to counsel, the right to a jury trial, that kind of thing. It’s not as simple as they are or are not persons. Of course they’re not persons.
TC: What are some solutions to make the criminal justice system for corporate crime more fair?
SB: What I talk about at the end of the book is the conversation we need to be having, more than specific concrete proposals. My argument is that we can continue to make proposals to tweak the criminal justice system one way or another. But, it’s not going to change the fundamental fact that we have dependent relationships on very large corporate institutions that engage in risky behaviors that we don’t have sufficient control over.
So, what we really need to be doing is having a conversation about the corporation itself and whether a very large public corporation is an institution that’s just become dysfunctional. Perhaps, we need to think about different ways to define the obligations outside the criminal justice system—the legal obligations of those who form and manage corporations. That’s the conversation we ought to be having, not a conversation about who is or who isn’t in jail.
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Class of 2019
Editor-in-chief 2017-18,
Local and national news department head 2016-17
Born in Hyderabad, India, Likhitha Butchireddygari moved to Baltimore at a young age. She is pursuing a Program II major entitled "Digital Democracy and Data" about the future of the American democracy.