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Science, values and politics: an insider’s reflections on corporate crime research

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Abstract

Diverse social and political forces have long shaped research on corporate crime and its social control in the U.S., and they have responded to this work in plural and contradictory ways. These forces range from the abstract and institutional to the local and personal. In this essay, I reflect on my three decades of research experience in this arena in an examination of these forces and their implications for research and public policy. More overtly than other forms of criminological research, the study of corporate lawbreaking has conjoined issues of values and politics with issues of science. This feature of the work has made consistently problematic such foundational questions as how to define the subject of inquiry, how to study it, and how to communicate about it. While this volatility has contributed to the ongoing marginalization of this research stream in both academic criminology and regulatory policy, it has also created a certain intellectual dynamism that should attract future generations of investigators to these questions, and to greater cross-disciplinary efforts to address them. Such developments may even pave the way to greater consideration of such research by policy-makers, should socioeconomic conditions in the U.S. and around the world raise the public salience of corporate wrongdoing.

‘Why do you want to study corporate managers? We know how they think.’

‘…a book entitled Corporate Crime automatically puts us on guard to defend the corporations…such a book should never have been written in the first place.’

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Notes

  1. I realize, of course, that the effort to disentangle ideological content from ‘objective’ critique is not only difficult, but that it is fraught with danger; for many thoughtful persons, the effort to distinguish knowledge or science from value is a fool’s errand. But I forge ahead here on the assumption that even the purposes of fools may illuminate key aspects of collective life, including some of the blind spots of the wise.

  2. It was a close call. Just back from another extended overseas research trip, Clinard was unaware that any of the sociology doctoral students might be interested, and was about to recruit his research assistants from among MBA graduate students in the Business School.

  3. During that period I had the opportunity to interview Myrdal and his wife, Alva, herself a Nobel laureate for peace, for the inaugural edition of the Department of Sociology’s newsletter, Wisconsin Update. Among many interesting points, Gunnar Myrdal suggested that American social science was too focused on narrow quantitative precision, presumably at the expense of wider institutional analyses and policy implications.

  4. Meaning that they were financial and geographic, in the main.

  5. The latter I attribute largely to the influence of my mother and her examples of liberal political activism and a thoroughgoing humanism, and to a selective taking from the messages of my religious upbringing in Catholic schools.

  6. Clinard testified in March of 1979 before the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Crime, reporting on our findings-to-date from our Justice Department-funded research study.

  7. In the preface the translator wrote [translated from the Chinese]: “China and the U.S. have different social [meaning political] systems, and there are big differences in the commission of crimes by legal entities [corporations], the reasons behind this, and relevant policies. Nevertheless, the commission of crimes by legal entities, as a product of the development to a certain historical level of China’s market economy, has quite a few things in common [with the American case], which are worth our attention as a comparative case. Of course, this requires us to take Marxism-Leninism as our guide, start from the realities of China, and carry out in-depth research and analysis, reject the bad things from abroad, absorb the best, and use things Western for the benefit of China.”

  8. Largest in terms of number of major corporations and areas of law covered. Sutherland had a much smaller sample of corporations, but examined his firms’ violations over the course of their corporate lifetimes, in contrast to our examination of cases for a two-year period.

  9. At the agency level, the data situation is improved today, if still limited in various respects.

  10. The dataset has been archived since the early 1980s at the Inter-university Consortium for Political and Social Research (ICPSR) at the University of Michigan. With the accompanying codebook, it is located in ICPSR’s National Archive of Criminal Justice Data under the title “Illegal Corporate Behavior, 1975-1976” (http://www.icpsr.umich.edu/NACJD/archive.html).

  11. In addition to our research, in the 1970s the Department of Justice also funded major white-collar crime investigations at the University of Minnesota and at Yale University. The research at Minnesota focused on employee theft (see, e.g., [18]), while the Yale studies were distributed across a number of specific types of white-collar offenses and their regulation at law (e.g., [36], [52], [39]).

  12. In his article highlighting the contrast we found between the financial costs of ordinary crime and organizational offending, and between this contrast and the relative severity of penalties applied to each type of lawbreaking, Mintz began this way: “Each year, hundreds of research studies are issued on ordinary crime. But it wasn’t until October 1979 that the first large-scale, comprehensive report on corporate crime was published, with no fanfare. Such contrasts abound in ‘Illegal Corporate Behavior’ …” (Washington Post, Dec. 9, 1979, page F8). Unfortunately Mintz’s report was buried on an inside page, surrounded by advertisements.

  13. At his Senate confirmation hearing before the Judiciary Committee, Smith declared that the Justice Department’s top priority would be violent crime, even though the vast majority of such crime is the responsibility of state and local governments. The New York Times noted that this marked a “significant change” from the Carter Administration’s law enforcement emphasis on white-collar crimes, including fraud and official corruption. Smith commented at his hearing that, “Top priority, to the extent that it’s within the limited area where the Federal Government ought to become involved, would be violent crime. That would be closely followed by organized crime, by drug enforcement and by white-collar crime in due course” [32].

  14. See Sutherland [45], [46] and Tappan [47].

  15. Paul Tappan was trained as both a lawyer and a sociologist.

  16. “The authors’ insistence on attaching the criminal label to non-criminal acts derives from their outrage that powerful corporations are able to manipulate the law to spare their delicts from criminal penalties…I am troubled by those who seek to criminalize acts they find offensive” ([38]: 306-307).

  17. As discussed below. The senior faculty in sociology at Yale voted against Reiss’s position and renewed the contract. I never learned the specific reason(s) for his position.

  18. Among the committees listed in the memorandum were those on Ad Hoc Regulatory Reform, Consumer Law, Corporate and Antitrust Law, Corporate Law and Accounting, Corporate Law and Taxation, Environmental Controls, Federal Regulation of Securities, and Food, Drug and Cosmetic Law.

  19. Referenced were both the corporate accounting scandals of the first few years of the 21st century and the 2007 conviction for obstruction of justice and perjury of I. Lewis (“Scooter”) Libby, the lawyer who served as U.S. Vice President Dick Cheney’s chief of staff, among other top roles in the Bush Administration. The conference on “Mentoring: The Future of the Profession” was hosted by the Nelson Mullins Riley & Scarborough Center on Professionalism at the University of South Carolina School of Law, March 27-29, 2008.

  20. As it happens, I had assumed that very fact as central to the basis of my research and writing on ethical dilemmas and corporate managements’ responses to them. See, e.g., [23]; [57].

  21. Shover [40] was quite right to point out that in the book we gave short shrift to what we then called “radical criminology.” While I was arguably more partial to its insights than Clinard, I supported its marginalization there on the view that our more “mainstream” approach would appeal to a broader audience, including public opinion leaders, corporate management and government policymakers.

  22. He also suggested that Clinard and I had further loosened the definition of crime (by eliminating Sutherland’s class component and focusing on organizations) in ways antagonistic to business: “In short, Sutherland’s influence continues to this day. Indeed, compared to contemporary theoreticians Sutherland might seem to have been a veritable cheerleader for corporate America” ([1]: 5-6).

  23. While the intent exception in the Martin Act does not extend to felony charges, both the legal and journalistic reports (cited in this paragraph) suggest the general importance of this exception in creating leverage for prosecutors over powerful defendants.

  24. The criminal intent standard remains in play in American jurisprudence. In 2005 the U.S. Supreme Court unanimously overturned the conviction of the accounting firm Arthur Andersen in the Enron matter because of the federal government’s application of a relaxed intent requirement in the jury trial (Arthur Andersen LLP v. United States, 544 U.S. 696; see. e.g., [14], [15]). The relevance of this decision to such tools as New York State’s Martin Act remains uncertain.

  25. “Recognizing structural pressures on conduct sharply changes enforcement strategies. It prompts legal responses to wrongdoing that reduce the opportunity for crime; we change the actor’s context to make crime less possible….Offenders, or merely anyone engaged in a given activity, may have to report their conduct, be it environmental discharge of waste or financial transactions….These sorts of legal responses, common in regulatory law and arising from deterrence frameworks, focus little on blame and much on reducing opportunities for recurrence of offending” ([7]: 1338).

  26. Cf., Laufer [25], whose detailed criticism of corporate criminal liability suggests that corporations use the same corporate complexity that underlies the doctrine to challenge the imposition of this form of liability on corporations.

  27. Contrasting the retributive enforcement strategy used for street crime with the preventative/restitutive strategies more favored for corporate lawbreaking, Brown argues that “the distinction in enforcement strategies is largely unjustified by differences in offenders, conduct, or harm in the two contexts” ([7]: 1298). Instead, he writes, “The disparate approaches (taken to these two types of offending) greatly affect whether knowing or willful conduct that can be prosecuted criminally actually will be prosecuted” ([7]: 1329; emphasis in original).

  28. In Brown’s words, “Thus, culpability is not an absolute value….Culpability is a dependent variable” ([7]: 1340).

  29. “Widespread handling of conduct as civil when it is eligible for criminal prosecution negates the public view of the conduct as criminally culpable….Willful white-collar wrongdoing comes to seem less criminal, while street wrongdoing, always prosecuted criminally, comes to seem more so….In this way, our practices of judgment and punishment communicate and help to actively construct the meaning of the conduct and harms they address” ([7]: 1335).

  30. Brown’s analysis also carries important social justice implications. He argues that street crime enforcement should use a considerably larger proportion of non-criminal sanctions, because social causation arguments for these offenses (e.g., lack of educational and work opportunity) are as plausible as those in the doctrine of corporate criminal liability, and as for white-collar offenses criminal enforcement for street crime also often carries high collateral costs (e.g., the disruption of minority communities and families from high rates of incarceration of their young men and women). Thus, he suggests that sanctions similarly aimed at repairing the social context of street crimes would be more successful and cost-effective than the conventional retributive ones, a line of argument congruent with the position of restorative justice advocates (see, e.g., [6]). But Brown concludes that, “The barrier to this transformation (to non-retributive approaches to street crime) is not primarily differences in offenders or lack of potential alternatives. The hurdle is largely in the ideological infrastructure through which we build, practice, and assess criminal and regulatory justice” ([7]: 1358).

  31. I later again encountered this concern for language in our interview-based study of corporate managers’ and executives’ perceptions of ethics in their work. In planning this sensitive research we were wisely advised to avoid (again, to the extent possible) the language of ‘ethics’ if we were to gain access to research subjects. For a discussion of how our research design accommodated this constraint, and the ethics of our own “work decisions,” see Yeager and Kram [60].

  32. In one of the reviews in the economics literature, a reviewer commented that “The author has wisely resisted the temptation to interpret this (legal) process from the narrow perspective of a class struggle model, preferring instead to share with us its full richness and complexity” [49].

  33. See [61].

  34. For a discussion of our research methods for gaining access to firms and to their top executives and other managers for these intensive interviews, see Yeager and Kram [60].

  35. By “elitist” I mean simply to highlight the fact that in its policy effects this market ideology routinely benefits national and international elites at the expense of poor, blue collar and middle class citizens.

  36. For some recent examples, see Pontell and Geis [34], Yeager and Simpson [61].

  37. See, e.g., [20], [16], [44], [41].

  38. The polling data summarized here are drawn from Barth [3], as well as from the following polls available at The Roper Center for Public Opinion Research, University of Connecticut, at http://www.ropercenter.uconn.edu/: Roper Report 79-6 (June 1979); Los Angeles Times Poll (March 2004); Gallup Poll (May 2004); Time/Yankelovich, Skelly & White Poll (May 1981); UBS/Gallup Index of Investor Optimism Poll (May 2002); Harris Poll (July 2002); Survey by The News Hour with Jim Lehrer/Henry J. Kaiser Family Foundation/Harvard School of Public Health (Spring 2001); Survey by the Public Interest Project (April 2004).

  39. The phrase is taken from the title of Thomas Nagel’s philosophical analysis of the problem of objectivity, The View From Nowhere [28].

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Acknowledgements

I am grateful for the advice and support of Kathy Kram, Stephen Kalberg, and the editors of the special edition, Mary Dodge and Gilbert Geis. Remaining errors are, of course, mine alone.

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    Peter Cleary Yeager

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Yeager, P.C. Science, values and politics: an insider’s reflections on corporate crime research. Crime Law Soc Change 51, 5–30 (2009). https://doi.org/10.1007/s10611-008-9152-2

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