White Collar and Corporate Crime Pose Special

¶ … White Collar and Corporate Crime Pose Special Problems for the Criminal Justice System?

White collar and corporate crime present special challenges for the criminal justice system in several different and significant ways. First, they pose a challenge to the criminal justice system in detection, because they both differ from traditional criminal behavior. Second, they pose a challenge for prosecution, because it can be difficult to prove either type of criminal behavior and difficult to have fact-finders understand the theory behind the prosecutions. Third, they pose a challenge for the criminal justice system because the criminal justice system is not established to enable the type of restitution that would be the most appropriate solution for these types of crimes. Finally, they pose a challenge to the criminal justice system because the criminal justice system is set up to assess the severity of crime based on the danger to health, safety, and property, which is not always readily accessible when considering white collar criminals.

The first challenge that white collar and corporate crime presents to the criminal justice system is that they are resistant to traditional law enforcement investigation methods. Criminals are often identified by the fact that they are somewhere they are not supposed to be, doing things they are not supposed to be doing, or otherwise engaging in suspicious behavior that leads one to investigate their behavior. For white collar criminals, this does not apply. They are in locations where they are supposed to be. Moreover, even when they are dealing with people's money, they are frequently doing things that they are supposed to be doing. Only by looking into the exact nature of their behavior can one uncover any type of wrongdoing, and this is, in and of itself, frequently very difficult to do because most of what they do is shrouded in an element of secrecy. For example, concern about theft keeps most information about people's finances private, but those concerns about privacy also make it difficult for people to detect malfeasance when it is occurring.

The second challenge to the criminal justice system when dealing with white collar crime is that it can be very difficult to prove in the context of a prosecution. White collar crime is not always clearly defined, and frequently involves underlying behavior that is legal, but carried out in a manner or with a motive that is improper. Establishing that behavior was motivated by something inappropriate can be difficult, if not impossible. In addition, white collar criminals, because of their access to accounts and records, can often do a tremendous job of hiding evidence, so that the exact nature of their crimes can be difficult to unwind and difficult to prove. It is not enough to be able to show that they were doing something inappropriate with someone's resources; prosecutors have to be able to prove what they were doing and why that particular behavior was criminal.

The third challenge that the criminal justice systems faces when dealing with white collar or corporate criminals is that the criminal justice system is not set up to provide the appropriate remedy for those types of crimes. The vast majority of victims of white collar crimes are not nearly as interested in a successful prosecution as they are in seeing some type of restitution for their losses. However, the criminal justice system emphasizes punishment over restitution. In fact, even when the criminal justice system is able to successfully detect, apprehend, and prosecute white collar criminals, they may be unable to discover the whereabouts of missing funds, which is the primary concern of the victims of these crimes. Moreover, while courts can order restitution, restitution orders are meaningless if the criminal justice system has been unable to find the location of missing funds, freeze those assets, and begin returning assets to those who have victimized. A further complication is that, in white collar crime scenarios, it is not unusual for some victims to actually have been complicit at some level of the criminal activity, making it difficult, if not impossible, to determine the appropriate division of any funds that are recovered.

The fourth and perhaps most challenging issue for the criminal justice system when facing white collar or corporate crime is dealing with the fact that penal institutions are simply not set up to deal with these types of criminals. In terms of actual damages, white collar criminals can create far more harm than a single burglar, but that harm is generally only monetary, at least on the surface. Of course, this does not address the fact that many victims of white collar crime feel an impact that goes far beyond monetary damage. However, is it appropriate to house these non-violent criminals amongst violent criminals? Moreover, is it a smart idea to do so? For the most part, white collar criminals are going to be people with above-average intelligence, specialized knowledge, and a disregard for the way their actions impact others that probably borders on antisocial. Is it a wise idea to place these Machiavellian schemers into a general prison population? One would anticipate that doing so would probably lead to an increase in organized crime in the prison environment.