Antitrust Violators
Adjudication as a criminal is, to use Garfinkel’s (1956) classic
term, degradation ceremony. [An important question.] The focus of this
article is on how offenders attempt to defeat the success of this ceremony and
deny their own criminality through the use of accounts. However, in the
interest of showing in as much detail as possible all sides of the experience
undergone by these offenders, it is necessary to treat first the guilt and
inner anguish that is felt by many white-collar offenders even though they deny
being criminals. This is best accomplished by beginning with a description of a
unique feature of the prosecution of white-collar crimes.
In white-collar criminal cases, the issue is likely
to be why something was done, rather
than who did it (Edelhertz, 1970, p.
47). There is often relatively little disagreement as to what happened. In the
words of one assistant U.S. attorney interviewed for the study:
If you actually had a movie playing, neither side
would dispute that a person moved in this way and handled this piece of paper,
etc. What it comes down to is, did they have the criminal intent?
If the prosecution is to proceed past the
investigatory stages, the prosecutor must infer from the patterns of events
that conscious criminal intent was present and believe that sufficient evidence
exists to convince a jury of this interpretation of the situation. As Katz
(1979, pp. 445-46) has noted, making this inference can be difficult because of
the way in which white-collar illegalities are integrated into ordinary
occupational routines. Thus, prosecutors conducting trials, grand jury
hearings, or plea negotiations spend a great deal of effort establishing that the
defendant did indeed have the necessary criminal intent. By concentrating on
the offender’s motives, the prosecutor attacks the very essence of the
white-collar offender’s public and personal image as an upstanding member of
the community. The offender is portrayed as someone with a guilty mind.
Not surprisingly, therefore, the most consistent and
recurrent pattern in the interviews, though not present in all of them, was
denial of criminal intent, as opposed to the outright denial of any criminal
behaviour whatsoever. Most offenders acknowledged that their behaviour probably
could be construed as falling within the conduct proscribed by statute, but
they uniformly denied that their actions were motivated by a guilty mind. This
is not to say, however, that offenders felt no guilt or shame as a result of
conviction. On the contrary, indictment, prosecution, and conviction provoke a
variety of emotions among offenders.
The enormous reality of the offender’s lived emotion
(Denzin, 1984) in admitting guilt is perhaps best illustrated by one offender’s
description of his feelings during the hearing at which he pled guilty.
You know [the plea’s] what really hurt. I didn’t even
know I had feet. I felt numb. My head was just floating. There was no feeling,
except a state of suspended animation.... For a brief moment, I almost hesitated.
I almost said not guilty. If I had been alone, I would have fought, but my
family....
The traumatic nature of this
moment lies, in part, in the offender’s feeling that only one aspect of his
life is being considered. From the offender’s point of view his crime
represents only one small part of his life. It does not typify his inner self,
and to judge him solely on the basis of this one event seems an atrocious
Injustice to the offender. [TonyBlair. WilliamClinton. GeorgeHerbertWalkerBush.]
For some the memory of the event is so painful that
they want to obliterate it entirely, as the two following quotations
illustrate.
I want quiet. I want to forget. I want to cut with
the past.
I’ve already divorced myself from the problem. I
don’t even want to hear the names of certain people ever again. It brings me
pain.
For others, rage rather than embarassment seemed to
be the dominant emotion.
I never really felt any embarassment over the whole
thing. I felt rage and it wasn’t false or self-serving. It was really
(something) to see this thing in action and recognise what the whole legal
system has come to through its development, and the abuse of the grand jury
system and the abuse of the indictment system.
The role of the news media in the process of punishment
and stigmatisation should not be overlooked. All offenders whose cases were
reported on by the news media were either embarrassed or embittered or both by
the public exposure.
The only one I am bitter at is the newspapers, as
many people are. They are unfair because you can’t get even. They can say
things that are untrue, [Accurate.] and let me say this to you. They wrote an
article on me that was so blasphemous, that was so horrible. [Accurate.] They
painted me as an insidious, miserable creature, wringing out the last penny.
[Accurate.]
Offenders whose cases were not reported on by the
news media expressed relief at having avoided that kind of embarrassment,
sometimes saying that greater publicity would have been worse than any sentence
they could have received.
In court, defense lawyers are fond of presenting
white-collar offenders as having suffered enough by virtue of the humiliation
of public adjudication as criminals. On the other hand, prosecutors present
them as cavalier individuals who arrogantly ignore the law and brush off its
weak efforts to stigmatise them as criminals. Neither of these stereotypes is
entirely accurate. The subjective effects of conviction on white-collar
offenders are varied and complex. One suspects that this is true of all
offenders, not only white-collar offenders.
The emotional responses of offenders to conviction have not
been the subject of extensive research. However, insofar as an
individual’s emotional response to adjudication may influence the deterrent or
crime-reinforcing impact of punishment on him or her, further study might
reveal why some offenders stop their criminal behaviour while others go on to
careers in crime (Casper, 1978, p. 80).
Although the offenders displayed a variety of
different emotions with respect to their experiences, they were nearly
unanimous in denying basic criminality. To see how white-collar offenders
justify and excuse their crimes, we turn to their accounts. The small number of
cases rule out the use of any elaborate classification techniques. Nonetheless,
it is useful to group offenders by offense when presenting their
interpretations.
Antitrust Violators
Four of the offenders had been convicted of antitrust
violations, all in the same case involving the building or contracting industry.
Four major themes characterised their accounts. First,
antitrust offenders focused on the everyday character and historical continuity
of their offenses.
It was a way of doing business before we even got
into the business. So it was like, why do you brush your teeth in the morning
or something.... It was a part of the everyday.... It was a method of survival.
The offenders argued that they were merely following
established and necessary industry practices. These practices were presented as
being necessary for the well-being of the industry as a whole, not to mention
their own companies. Furthermore, they argued that cooperation among
competitors was either allowed or actively promoted by the government in other
industries and professions.
The second theme emphasised
by the offenders was the characterisation of their actions as blameless. They
admitted talking to competitors and admitting submitting intentionally
noncompetitive bids. However, they presented these practices as being done not
for the purpose of rigging prices nor to make exorbitant profits. Rather, the
everyday practices of the industry required them to occasionally submit bids on
projects they really did not want to have. To avoid the effort and expense of
preparing full-fledged bids, they would call a competitor to get a price to
use. Such a situation might arise, for example, when a company already had
enough work for the time being, but was asked by a valued customer to submit a
bid anyway.
All you want to do is show a bid, so that in some
cases it was for as small a reason as getting your deposit back on the plans
and specs. So you just simply have no interest in getting the job and just call
to see if you can find someone to give you a price to use, so that you don’t
have to go through the expense of an entire bid preparation. Now that is looked
at very unfavourably, and it is a technical violation, but it was strictly an
opportunity to keep your name in front of a desired customer. Or you may find
yourself in a situation where somebody is doing work for a customer, has done
work for many, many years and is totally acceptable, totally fair. There is no
problem. But suddenly they [the customer] get an idea that they ought to have a
few tentative figures, and you’re called in, and you are in a moral dilemma.
There’s really no reason for you to attempt to compete in that circumstance. And
so there was a way to back out.
Managed in this way, an action that appears on the surface to
be a straightforward and conscious violation of antitrust regulations becomes
merely a harmless business practice that happens to be a “technical violation.”
The offender can then refer to his personal history to verify his claim
that, despite technical violations, he is in reality a law-abiding person. In
the words of one offender, “Having been in the business for 33 years, you don’t
just automatically become a criminal overnight.”
Third, offenders were very
critical of the motives and tactics of prosecutors. Prosecutors were
accused of being motivated solely by the opportunity for personal advancement
presented by winning a big case. [Isn’t that true? That wife ofGeorgeClooney.] Furthermore,
they were accused of employing prosecution selectively and using tactics that
allowed the most culpable offenders to go free. The Department of Justice was
painted as using antitrust prosecutions for political purposes.
The fourth theme emphasised by the antitrust offenders
involved a comparison between their crimes and the crimes of street criminals.
[BarackObama and his blackies. RonaldReagan and his blackies.] Antitrust
offenses differ in their mechanics from street crimes in that they are not
committed in one place and at one time. Rather, they are spatially and
temporally diffuse and are intermingled with legitimate behaviour. In addition,
the victims of antitrust offenses tend not to be identifiable individuals, as
is the case with most street crimes. These
characteristics are used by antitrust violators to contrast their own behaviour
with that of common stereotypes of criminality. Real crimes are pictured as
discrete events that have beginnings and ends and involve individuals who
directly and purposely victimise someone else in a particular place and a
particular time.
It certainly wasn’t a premeditated type of thing in
our cases as far as I can see .... To me it’s different than [censored] and I
sitting down and and we plan, well, we’re going to rob this bank tomorrow and
premeditatedly go in there .... That wasn’t the case at all .... It wasn’t like
sitting down and planning, I’m going to rob this bank type of thing .... It was
just a common everyday way of doing business and surviving.
A consistent thread running through all of the
interviews was the necessity for antitrust-like practices, given the realities
of the business world. Offenders seemed to define the situation in such a
manner that two sets of rules could be seen to apply. On the one hand, there
are the legislatively determined rules – laws – which govern how one is to
conduct one’s business affairs. On the other hand, there is a higher set of
rules based on the concepts of profit and survival, which are taken to define
what it means to be in business in a capitalistic society. These rules do not
just regulate behaviour; rather, they constitute or create the behaviour in
question. If one is not trying to make a profit or trying to keep one’s
business going, then one is not really “in business”. Following Searle (1969,
pp. 33-41), the former type of rule can be called a regulative rule and the
latter type a constitutive rule. In certain situations, one may have to violate
a regulative rule in order to conform to the more basic constitutive rule of
the activity in which one is engaged.
This point can best be
illustrated through the use of analogy involving competitive games. [Soderbergh.]
Trying to win is a constitutive rule of competitive games in the sense that if
one is not trying to win, one is not really playing the game. In
competitive games, situations may arise where a player deliberately breaks the
rules even though he knows or expects he will be caught. In the game of
basketball, for example, a player may deliberately foul an opponent to prevent
him from making a sure basket. In this instance, one would understand that the
fouler was trying to win by gambling that the opponent would not make the free
throws. The player violates the rule against fouling in order to follow the
higher rule of trying to win.
Trying to make a profit or survive in business can be
thought of as constitutive rule of capitalist economies. The laws that govern
how one is allowed to make a profit are regulative rules, which can
understandably be subordinated to the rules of trying to survive and profit. From the
offender’s point of view, he is doing what businessmen in our society are
supposed to do, that is, stay in business and make a profit. [Soderbergh.] Thus,
an individual who violates society’s laws or regulations in certain situations
may actually conceive of himself as thereby acting more in accord with the
central ethos of his society than if he had been a strict observer of its law.
One might suggest, following Denzin (1977), that for businessmen in the
building and contracting industry, an informal structure exists below the
articulated legal structure, one which frequently supersedes the legal
structure. The informal structure may define as moral and “legal” certain
actions that the formal legal structure defines as immoral and “illegal.”
Tax Violators
Six of the offenders interviewed were convicted of
income tax violations. Like antitrust violators, tax violators can rely upon
the complexity of the tax laws and an historical tradition in which cheating on
taxes is not really criminal. Tax offenders would claim that everybody cheats
somehow on their taxes and present themselves as victims of an unlucky break,
because they got caught.
Everybody cheats on their income tax, 95% of the
people. Even if it’s for $10, it’s the same principle. I didn’t cheat. I just
didn’t know how to report it.
The widespread belief that cheating on taxes is
endemic helps to lend credence to the offender’s claim to have been singled out
and to be no more guilty than most people.
Tax offenders were more likely to have acted as
individuals rather than as a part of a group and, as a result, were more prone
to account for their offenses by referring them as either mistakes or the
product of special circumstances. Violations were presented as simple errors
which resulted from ignorance and poor record-keeping. Deliberate intention to
steal from the government for personal benefit was denied.
I didn’t take the money. I have no bank account to
show for all this money, where all this money is at that I was supposed to
have. They never found the money, ever. There is no Swiss bank account, believe
me. My records were strictly one big mess. That’s all it was. If only I had an
accountant, this wouldn’t even of happened. No way in God’s creation would this
ever have happened.
Other offenders would justify their actions by
admitting that they were wrong while painting their motives as altuistic rather
than criminal. Criminality was denied because they did not set out to
deliberately cheat the government for their own personal gain. Like the
antitrust offenders discussed above, one tax violator distinguished between his
own crime and the crimes of real criminals.
I’m not a criminal. That is,
I’m not a criminal from the standpoint of taking a gun and doing this and that.
I’m a criminal from the standpoint of making a mistake, a serious mistake....
[DonaldTrump. MartinScorsese. RobertSMcNamara. GeorgeHerbertWalkerBush.]
The thing that really got me involved in it is my feeling for the employees
here, certain employees that are my right hand. In order to save them a certain
amount of taxes and things like that, I’d extend money to them in cash, and the
money came from these sources that I took it from. You know, cash sales and
things of that nature, but practically all of it was turned over to the
employees, because of my feeling for them.
All of the tax violators pointed out that they had no
intention of deliberately victimising the government. None of them denied the
legitimacy of the tax laws, nor did they claim that they cheated because the
government is not representative of the people (Conklin, 1977, p. 99). Rather,
as a result of ignorance or for altruistic reasons, they made decisions which
turned out to be criminal when viewed from the perspective of the law. While
they acknowledged the technical criminality of their actions, they tried to
show that what they did was not criminally motivated.
Violations of Financial
Trust
Four offenders were involved in violations of
financial trust. Three were bank officers who embezzled or misapplied funds,
and the fourth was a union official who embezzled from a union pension fund.
Perhaps because embezzlement is one crime in this sample that can be considered
mala in se, these offenders were much more forthright about their crimes. Like
the other offenders, the embezzlers would not go so far as to say “I am a criminal,”
but they did say “What I did was wrong, was criminal, and I knew it was.” Thus,
the embezzlers were unusual in that they explicitly admitted responsibility for
their crimes. Two of the offenders clearly fit Cressey’s scheme as persons with
financial problems who used their positions to convert other people’s money to
their own use.
Unlike tax evasion, which can be excused by reference
to the complex nature of tax regulations, or antitrust violations, which can be
justified as for the good of the organisation as a whole, embezzlement requires
deliberate action on the part of the offender and is almost inevitably
committed for personal reasons. The crime of embezzlement, therefore, cannot be
accounted for by using the same techniques that tax violators or antitrust
violators do. The act itself can only be explained by
showing that one was under extraordinary circumstances which explain one’s
uncharacteristic behaviour. Three of the offenders referred explicitly
to extraordinary circumstances and presented the offense as an aberration in
their life history. For example, one offender described his situation in this
manner:
As a kid, I never even – you know, kids will
sometimes shoplift from the dime store – I never even did that. I had never
stolen a thing in my life and that was what was so unbelievable about the whole
thing, but here were some psychological and personal questions that I wasn’t
dealing with very well. I wasn’t terribly happily married. I was married to a
very strong-willed woman and it just wasn’t working out.
The offender in this instance goes on to explain how,
in an effort to impress his wife, he lived beyond his means and fell into debt.
A structural characteristic of embezzlement also
helps the offender demonstrate his essential lack of criminality. Embezzlement
is integrated into ordinary occupational routines. The illegal action does not
stand out clearly against the surrounding set of legal actions. Rather, there
is a high degree of surface correspondence between legal and illegal behaviour.
To maintain this correspondence, the offender must exercise some restraint when
committing his crime. The embezzler must be discreet in his stealing; he cannot
take all of the money available to him without at the same time revealing the
crime. Once
exposed, the offender can point to this restraint on his part as evidence that
he is not really a criminal. That is, he can compare what happened with what
could have happened in order to show how much more serious the offense could
have been if he was really a criminal at heart.
What I could have done if I had truly a devious
criminal mind and perhaps if I had been a lilttle smarter – and I am not saying
that with any degree of pride or any degree of modesty whatever, [as] it’s
being smarter in a bad, an evil way – I could have pulled this off on a grander
scale and I might still be doing it.
Even though the offender is forthright about
admitting his guilt, he makes a distinction between himself and someone with a
truly “devious criminal mind.” Contrary to Cressey’s (1953, pp. 57-66)
findings, none of the embezzlers claimed that their offenses were justified
because they were underpaid or badly treated by their employers. Rather,
attention was focused on the unusual circumstances surrounding the offense and
its atypical character when compared to the rest of the offender’s life. This
strategy is for the most part determined by the mechanics and organisational
format of the offense itself. It cannot be committed
accidentally or out of ignorance. It can be accounted for only by showing that
the actor “was not himself” at the time of the offense or was under such
extraordinary circumstances that embezzlement was an understandable response to
an unfortunate situation. [MartinScorsese. KentJones. WoodyAllen.
NoahBaumbach.] This may explain the finding that embezzlers tend to
produce accounts that are viewed as more sufficient by the justice system than
those produced by other offenders (Rothman & Gandossy, 1982). This only
plausible option open to a convicted embezzler to explain his offense is to
admit responsibility while justifying the action, an approach that apparently
strikes a responsive chord with judges.
Fraud and False
Statements
Ten offenses were convicted of some form of fraud or
false statements charge. Unlike embezzlers, tax violators, or antitrust
violators, these offenders were much more likely to deny committing any crime
at all. Seven of the 10 claimed that they, personally, were innocent of any
crime, although each admitted that fraud had occurred. Typically, they claimed
to have been set up by associates and to have been wrongfully convicted by the
U.S. attorney handling the case. One might call this the scapegoat strategy. Rather
than admitting technical wrongdoing and then justifying or excusing it, the
offender attempts to paint himself as a victim by shifting the blame entirely
to another party. Prosecutors were presented as being either ignorant or
politically motivated.
The outright denial of any crime whatsoever is
unusual compared to the other types of offenders studied here. It may result
from the nature of the crime of fraud. By definition, fraud involves a
conscious attempt on the part of one or more persons to mislead others. While
it is theoretically possible to accidentally violate the antitrust and tax
laws, or to violate them for altruistic reasons, it is difficult to imagine how
one could accidentally mislead someone else for his or her own good.
Furthermore, in many instances, fraud is an aggressively acquisitive crime. The
offender develops a scheme to bilk other people out of money or property, and
does this not because of some personal problem but because the scheme is an
easy way to get rich. Stock swindles, fraudulent loan scams, and so on, are
often so large and complicated that they cannot possibly be excused as foolish
and desperate solutions to personal problems. Thus, those involved in
large-scale frauds do not have the option open to most embezzlers of presenting
themselves as persons responding defensively to difficult personal
circumstances.
Furthermore, because fraud involves a deliberate
attempt to mislead another, the offender fails to remove himself from the
scheme runs risk of being show to have a guilty mind. That is, he is shown to
possess the most essential element of modern conceptions of criminality: an
intent to harm another. His inner self would in this
case be exposed as something other than what it has been presented as, and all
of his previous actions would be subject to reinterpretation in light of this
new perspective. For this reason, defrauders are most prone to denying any
crime at all. The cooperative and conspiratorial nature of many
fraudulent schemes makes it possible to put the blame on someone else and to
present oneself as a scapegoat. Typically, this is done by claiming to have
been duped by others.
Two illustrations of this strategy are presented
here:
I figured I wasn’t guilty, so it wouldn’t be that
hard to disprove it, until, as I say, I went to court and all of a sudden they
start bringing in these guys out of the woodwork implicating me that I never
saw. Lot of it could be proved that I never saw.
Inwardly, I personally felt that the only crimethat I
committed was not telling on these guys. Not that I deliberately, intentionally
committed a crime against the system. My only crime was that I should have had
the guts to tell on these guys, what they were doing, rather than putting up
with it and then trying to gradually get out of the system without hurting them
or without them thinking I was going to snitch on them.
Of the three offenders who admitted committing
crimes, two acted alone and the third acted with only one other person. Their accounts were similar to others presented earlier and
tended to focus on either the harmless nature of their violations or on the
unusual circumstances that drove them to commit their crimes. One claimed that
his violations were only technical and that no one besides himself had been
harmed.
First of all, no money was stolen or anything of that
nature. The bank didn’t lose any money.... What I did was a technical
violation. I made a mistake. There’s no question about that, but the bank lost
no money.
Another offender who directly admitted his guilt was
involved in a check-kiting scheme. In a manner similar
to embezzlers, he argued that his actions were motivated by exceptional
circumstances.
I was faced with the choice of all of a sudden, and I
mean now, closing the door or doing something else to keep, that business
open.... I’m not going to tell you that this wouldn’t have happened if I’d had
time to think it over, because I think it probably would have. You’re sitting
there with a dying patient. You are going to keep him alive.
In the other fraud cases more individuals were involved,
and it was possible and perhaps necessary for each offender to claim that he
was not really the culprit.
Discussion: Offenses,
Accounts and Degradation Ceremonies
The investigation, prosecution, and conviction of a
white-collar offender involves him in a very undesirable status passage (Glaser
& Strauss, 1971). The entire process can be viewed as a long and drawn-out
degradation ceremony with the prosecutor as the chief denouncer and the
offender’s family and friends as the chief witnesses. The offender is moved
from the status of law-abiding citizen to that of convicted felon. Accounts are
developed to defeat the process of identity transformation that is the object
of a degradation ceremony. They represent the offender’s attempt to diminish
the effect of his legal transformation and to prevent its becoming a publicly
validated label. It can be suggested that the accounts developed by
white-collar offenders take the forms that they do for two reasons: (1) the
forms are required to defeat the success of the degradation ceremony, and (2)
the specific forms used are the ones available given the mechanics, history,
and organisational context of the offenses.
Three general patterns in accounting strategies stand
out in the data. Each can be characterised by the subject matter on which it
focuses: the event (offense), the perpetrator (offender), or the denouncer
(prosecutor). These are the natural subjects of accounts in that to be
successful, a degradation ceremony requires each of these elements to be
presented ina particular manner (Garfinkel, 1956). If an account-giver can
undermine the presentation of one or more of the elements, then the effect of
the ceremony can be reduced.
Although there are overlaps in the accounting
strategies used by the various types of offenders, and while any given offender
may use more than one strategy, it appears that accounting strategies and
offenses correlate....
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