Perspective | Democrats urge DOJ to get tougher on white-collar criminals

Every night, local television news blares about crime on the streets, fostering fear of muggings, carjackings and killings. Meanwhile, white-collar crime gets far less notice — but it is far more expensive.

Now, Congress is bringing more attention to white-collar and corporate crooks through bicameral legislation that would require the Department of Justice to gather, analyze and publish data on federal corporate crime. The sponsors aim for greater oversight, enforcement and deterrence.

“While the Department of Justice regularly collects data on nearly every type of street-level crime, there is very little reporting of corporate and white-collar crimes, with the last thorough DOJ report on corporate crime being in 1979,” said Rep. Mary Gay Scanlon (D-Pa.), as she introduced the House bill. “Without data or transparency, lawmakers, journalists and the public are left in the dark about the size and scope of corporate crime in America and the effectiveness of the federal government’s response.”

The size and scope of corporate crime are massive, with an annual price tag exceeding $300 billion, according to FBI data cited by Senate Judiciary Committee Chairman Dick Durbin (D-Ill.). The street crime tab, by comparison, is a meager $16 billion.

Yet, while corporate crime costs much more, it is prosecuted far less, Durbin told a pre-Christmas Senate hearing, colorfully titled “Cleaning Up the C-Suite: Ensuring Accountability for Corporate Criminals.”

As corporate-crime costs soar, Justice lacks resources “to battle deep-pocketed corporations,” Durbin lamented. The department regularly forgoes corporate, criminal prosecutions, he said, opting instead for better-behavior agreements with company bosses. Too few resources, he added, “is a bipartisan failing.”

In response, a Justice spokesperson said the department “is focused on the impact of our prosecutions, not just the number of them. We pour resources into bringing the most serious cases against the most significant wrongdoers.”

The opioid outrage involving Purdue Pharma and its Sackler family owners was mentioned repeatedly at the hearing as an example of big-business individuals not being prosecuted. Currently, the Supreme Court is examining the legality of a financial plan the company accepted after declaring bankruptcy in 2019. Purdue faced lawsuits that accused the firm of fueling widespread opioid addiction by pushing the OxyContin painkiller.

“Why was no criminal action brought against the Sacklers?” Durbin asked at the hearing.

Nicole Argentieri, DOJ’s acting assistant attorney general for the Criminal Division, responded, saying, “We follow the facts and the law and we apply the principles of federal prosecution.”

But for Durbin, “the message is basically if you’ve got enough money, you can game the system and walk away with plenty of billions when it’s left over.”

Purdue Pharma declined to comment.

Ryan Hampton, a 43-year-old recovering opioid addict in Las Vegas, complained to senators that “the notion that certain executives at select companies are simply too big to jail has caused tremendous harm to American citizens and has eroded the public’s trust in our institutions.” While “pharmaceutical companies have pled guilty to major federal crimes and settled multibillion-dollar lawsuits,” he added, “justice has still not materialized for victims.” Hampton told me he’ll celebrate nine years clean on Feb. 2, after being hooked for a decade.

Justice officials rebuff the notion that corporate criminals escape punishment. “The Department is committed to holding accountable those who engage in the most significant wrongdoing,” its statement said, “and to accomplish this, the Department targets its resources on the most impactful cases supported by the facts and the law.”

During the hearing, Sen. Sheldon Whitehouse (D-R.I.) questioned department policy encouraging corporate prosecutions to “lean towards leniency,” while there is no analog “if the defendant is a human being.”

In response, DOJ pointed to a Justice Manual passage that says, “Corporations should not be treated leniently because of their artificial nature nor should they be subject to harsher treatment.” But to Whitehouse’s point, the manual also says prosecutors “may take into account the possibly substantial consequences to a corporation’s employees, investors, pensioners, and customers, many of whom may, depending on the size and nature of the corporation and their role in its operations, have played no role in the criminal conduct, have been unaware of it, have been unable to prevent it, or have been victimized by it.” Street crime offenders, or their relatives who played no role in criminal conduct, aren’t offered the same specified consideration.

If the Durbin-Scanlon legislation exposes racial factors in corporate crime prosecution, it could help expose prosecution biases. “Identifying racial disparities in enforcement and sentencing is an important reason for data collection and transparency,” said a congressional aide, who spoke on the condition of anonymity because of committee policy. “It’s important to note that even within white-collar prosecutions, there are racial disparities in outcomes.”

Compared to White males, Black men convicted of fraud received prison sentences more than 9 percent longer, and Hispanic males were given almost 13 percent more time, according to the U.S. Sentencing Commission’s November 2023 Demographic Differences in Federal Sentencing report. Men categorized as “other race,” however, were penalized with 6 percent less time than White males.

Whatever the race of those penalized, they are probably among those Durbin called the “little guys.”

“What does it say about the system of justice in America,” he wondered as he adjourned the hearing, “if the big guys are exempt and the little guys go to jail for possession of a handful of crack cocaine for long periods of time?”

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