Let’s be ‘smarter’ not ‘tougher’ on white collar crime
To the extent that white collar offenders are easy to drive, this is due to not bringing them to court due to undetected and unreported offenses as well as limited police and prosecution resources.
In addition, there is good reason to believe that rethinking the length of prison sentences can pay societal and economic dividends.
In general terms, custodial sentences have three main purposes: to punish, deter and protect the community. There is also public denunciation and pardon, but both concepts are limited in practice. Certainly, in all my years of research, I don’t think I’ve ever spoken to an inmate who has felt “rehabilitated” by the prison experience.
While I am not advocating limiting the use of prison per se, critical reflection through these lenses raises important questions about the usefulness of long prison terms for criminal categories that include white collar delinquency.
Imprisonment is the harshest sentence in our legal system, and the realistic prospect of imprisonment is the foundation of an effective criminal justice system.
However, it is not clear that extended prison sentences represent the most appropriate form of punishment for many white collar offenders.
The reality is that for most white-collar criminals, the most impactful form of punishment was inflicted before they entered prison: financial ruin, public stigma, shame, embarrassment and social ostracism, as well as the limited prospects of finding meaningful work.
Beyond a long incarceration, judges have a vast arsenal of sanctions. These include fines, forfeiture orders, restitution orders, professional disqualifications, intensive correctional orders that include house arrest, electronic surveillance and community service, and other programs. of innovative condemnation.
The heavy social and economic hardships imposed by these non-custodial sentences for fraud should not be underestimated in a frenzied public movement of punishment.
In terms of deterrence, there is a widely held and widely intuitive view that heavy prison sentences are likely to deter others.
However, such thinking ignores the reality of criminal decision-making in crimes like fraud.
Research consistently suggests that most offenders do not give long or serious thought to potential sanctions, and if they do, such consideration does not go beyond the perspective of incarceration rather than sentence length. .
My research is consistent with a large body of work that suggests that the greatest deterrent against crime is not the size of the sentence, but the perceived likelihood of detection.
Risk to society
White collar offenders are relatively distinct from other offenders in terms of risk to society.
There is a minimal risk of physical violence, a lower threat of recidivism and therefore a lower likelihood of future harm to the community.
The reality is that a fraudster is likely to have a hard time regaining a position of trust and is less likely to be a career criminal.
Taken together, these arguments challenge the relevance of long periods of incarceration for white-collar criminals.
The rising cost of incarceration during economic uncertainty as well as the impact of prison on inmates only add to the arguments.
A few years ago, the Productivity Commission estimated that the cost of incarceration per inmate was $ 303 per day.
If Lukas Kamay, the NAB employee who received the longest term for insider trading at the time he was sentenced – 7 years and 3 months – had served his entire sentence, the total cost to the taxpayer would be of nearly a million dollars.
It is difficult to see a return on investment for the company. In terms of research, there is no evidence that longer sentences correlate with lower crime rates, less recidivism, or better future outcomes for offenders after prison.
One thing is certain that custodial sentences place offenders among career criminals and subsequently make their reintegration and their productive role in society more difficult for them.
The term punitive populism describes the growing public support for harsh sentences, including incarceration.
It finds expression in the growing fixation of the cancellation culture and the fear-mongering of journalists and politicians about crime (despite the fact that the more violent criminal categories – assaults, homicides, thefts, auto thefts) – have fallen over the past 20 years).
Of course, that doesn’t mean tough penalties are never right for white collar crimes. Repeat white collar offenders pose a significant threat to community safety.
Retired Federal Court Judge Ray Finkelstein points to the equivalency problem of treating certain categories of offenders differently, risking treating “lower status” offenders more harshly than “high status” offenders.
While this is a not unfounded argument, the plight of delinquents deprived of their property, employment and liberty should not be underestimated, and the reality is that many fraudsters are far from be high-ranking social actors.
Replacing “tough” with “smart” in sentencing campaign slogans is unlikely to win an election.
He will likely meet opposition from victims and those who undertake the work of prosecution and protection.
Ultimately, however, long prison sentences come at a high cost and low return for many white collar offenders.