About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

17 Am. Crim. L. Rev. 409 (1979-1980)
Optimal Sentences for White-Collar Criminals

handle is hein.journals/amcrimlr17 and id is 419 raw text is: Optimal Sentences for White-Collar Criminals RICHARD A. POSNER* Those concerned by the growth of white-collar crime disagree over the choice of a fine or imprisonment as the more appropriate sentence. In this article, Professor Posner argues that a sufficiently large fine is an equally effective deterrent that is cheaper to administer and therefore socially preferable. I have agreed to participate in this symposium because it gives me an opportunity to argue a favorite plank in the economist's platform for reforming the legal system, in a context in which the economic position can be simply but persuasively stated without elaborate argument and evidence. The plank is the substitution, whenever possible, of the fine (or civil penalty) for the prison sentence as the punishment for crime; the appealing context in which to argue the case for such substitution is the punishment of the white collar criminal. The coiner of the term white collar crime defined it as a crime committed by a person of respectability and high social status in the course of his occupation,' but this is not a good definition. The terms respectability and high social status are ambiguous, and the definition arbitrarily excludes certain white-collar crimes, such as evasion of the personal income tax, which are not committed in the course of one's occupation. More important, it is not an apt definition from the standpoint of sentencing policy, which is the focus of this article. I shall instead, for reasons that I hope will soon become clear, use the term white-collar crime to refer to the nonviolent crimes typically committed by either (1) well-to-do individuals or (2) associations, such as business corpora- tions and labor unions, which are generally well-to-do compared to the common criminal. White-collar crime in the sense I use it is illustrated by the criminal offenses created by the securities laws, the labor laws, the antitrust laws, other regulatory statutes, and the income-tax laws. But not every offender under such laws is a white-collar criminal as I use the term. A waitress, for example, could commit a criminal violation of the tax laws by not reporting her tips as income; but because, as we shall see, the affluence of the offender is very important to the correct punishment for the offense, I would not describe her offense as a white-collar crime. Nor would a murder committed by a wealthy person-or by a criminal gang seeking to monopolize * Lee and Brena Freeman Professor of Law, University of Chicago. B.A. 1959, Yale University; LL.B. 1962, Harvard University. 1. E. SUTHERLAND, WHITE COLLAR CRIME 9 (1961). See also H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 534 (1968). The term white collar crime is, of course, not subject to any one clear definition. Edelhertz, The Nature, Impact and Prosecution of White Collar Crime, in WHITE COLLAR CRIMES: DEFENSE AND PROSECUTION 15, 16 (B. George, Jr. ed. 1971). Edelhertz argues that Sutherland's definition is too restrictive, and proposes the following: an illegal act or series of illegal acts committed by nonphysical means and by concealment or guile, to obtain money or property, to avoid the payment or loss of money or property, or to obtain business or personal advantage. Id. at 16-17. Surely this is too broad-it includes, for example, espionage. 409

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most