In the past few months most Americans have become far more familiar with the concept of "white-collar crime" than they had ever hoped to be. The almost daily media revelations of corporate misconduct, often of stunning magnitude, have not only shaken popular confidence in the stock market but in the whole underlying system of corporate capitalism. To restore popular faith in American business and business leaders, much will need to be done.
Congress is already at work on passing legislation designed to prevent reoccurrences of the disasters that have overtaken Enron, Worldcom, and other companies as well as laws which will severely punish business executives who loot their companies and defraud investors. But, in fact, there are already a substantial number of laws on the books that can be used to punish those who have caused our current crisis if they can be enforced.
The president has referred to the executives implicated in the current corporate scandals as no better than "common criminals." In fact, the president is wrong. The men and women who lead our major corporations occupy places of special trust. They wield immense power, control vast sums of money, and, in return, they enjoy wealth and privileges the rest of us can scarcely imagine. When they steal from their companies and the public, when they defraud investors and damage the securities markets, they act in a way that is magnitudes worse than the poor teenager who robs a gas station.
The impact of corporate crime of the type now coming to light is almost incalculable. Thousands of people are left unemployed, enough to seriously weaken the American economy. Investors from around the world have begun to move their funds out of the United States markets, for instance, in response to these crimes, actions which negatively affect every American.
There is a tendency, when one speaks of white-collar crime to imagine that it is somehow less serious than "common" crime, that white-collar criminals are somehow less dangerous than other criminals because they do not carry weapons or break into peoples' homes. But, in fact, the damage they do is often far greater and has far longer lasting consequences for vastly more people. Just because a crime is committed by someone who works in an office and looks presentable does not make it less significant. Financial crime is the plague of our era.
There can be little doubt that over the next few months and years a number of the executives involved in the current scandals will be prosecuted. The Securities & Exchange Commission and the United States Justice Department are already preparing such prosecutions. One may also hope that state attorneys general will also look into whether they can bring state actions against these white-collar criminals under state law to recover some of their citizens' losses.
The kinds of problems these cases represent are unusual. Simple police work and prosecutorial techniques do not suffice. Specialized investigators must sift through thousands of complex financial documents and trace transactions that often take place in multiple countries. Witnesses are often uncooperative and have political and financial power. All of this makes the work of the prosecution extraordinarily difficult.
Government lawyers are generally highly qualified and terribly overworked. Most could earn far more money in private practice. Yet they stay in government because they are committed to what they do. Nevertheless, commitment alone is not enough. Today this is especially true since governments are actively involved in the war against terrorism, a war which is using up a large amount of resources.
If federal and state government agencies are to prosecute white-collar criminals successfully they are going to need money and manpower. It is not enough for the president to say that he will not allow these executives to go unpunished. It is not enough for Congress to pass new laws. It is also absolutely necessary that the relevant agencies of the federal and state governments be given the resources they need to do their jobs.
The New York Times reported last week that one lawyer who is now representing several accused executives charges $600 per hour for his services and has every resource necessary available to defend his clients. We must remember that many of the executives accused of crime in these cases have vast wealth and can easily afford to hire the best and brightest legal talent to defend them. That is their right under our Constitution. But if justice is truly to be done, then the prosecution must be able to match the defense in time and money.
Too many government prosecutions have failed over the years for lack of resources. Anyone who has followed the history of corporate prosecutions will testify that the prosecution is often at a great disadvantage because of lack of personnel and funds. The only way to restore faith in our corporate system is to ensure that justice is done, and this will require that governments not only bring prosecutions but do so in a way that permits them a chance of winning in court. In the end the result will be worth the expense.
Mike Hoeflich is a professor in the Kansas University School of Law.