The number of federal white-collar criminal prosecutions in fiscal year 2015 will be approximately 37 percent lower than the number of prosecutions in 1995. ((David Johnston, Enforcement for White Collar Crime Hits 20- year Low, Al Jazeera America (Aug. 14, 2015), http://america.aljazeera.com/opinions/2015/8/enforcement-for-white-collar-crimes-hits-20-year-low.html.)) In a paper published in November 2015, Rena I. Steinzor, a law professor and Center for Progressive Reform scholar, contends that “we have an under-criminalization [of white-collar crimes] problem” in the United States. ((Jennifer Taub, Going Soft on White- Collar Crime, N.Y. Times (Nov. 20, 2015), http://www.nytimes.com/2015/11/21/business/dealbook/going-soft-on-white-collar-crime.html?ref=dealbook&_r=0.)) Furthermore, Steinzor contends that “people die from preventable reasons everyday in America and the vast majority of corporate managers responsible for such episodes escape even a hint of criminal charges.” ((Id.))
According to data from the Justice Department, during the first 9 months ended of 2015, “the government brought 5,173 white-collar prosecutions” as compared to the 8,491 prosecutions brought in the first 9 months of 1995. ((Federal White Collar Crime Prosecutions at 20-Year Low, Trac Reports, http://trac.syr.edu/tracreports/crim/398/ (last visited Nov. 24, 2015).)) “These counts are based on tens of thousands of case-by-case records obtained from the Executive Office for United States Attorneys (EOUSA) under the Freedom of Information Act (FOIA) by Syracuse University’s Transactional Records Access Clearinghouse (TRAC).” ((Id.))
This brings about the question of what is causing the decline in federal white-collar crime prosecutions? Is it because there is a decline in the number of white-collar crimes perpetrated or is it due to shifting enforcement policies by each of the administrations and the various agencies? ((See Federal White Collar Crime Prosecutions at 20-Year Low, supra note 4.)) Some scholars believe that the decline in white-collar prosecutions is not likely resulting from a decrease in crimes perpetrated but rather because “politically appointed prosecutors [are disinterested] to take on their former clients.” ((Dan Wright, White Collar Crime Prosecutions at 20 Year Low, Mintpress News (Aug. 13, 2015), http://www.mintpressnews.com/white-collar-crime-prosecutions-at-20-year-low/208634/; see Johnston, supra note 1.)) The Justice Department has been highly criticized for its weak enforcement of corporate crimes during the Obama administration. ((Id.)) Not a single Wall Street executive was prosecuted for misconduct that gave rise to the 2008 financial crisis. ((Zach Carter, House Bill Would Make it Harder to Prosecute White- Collar Crime, Huffington Post (Nov. 16, 2015), http://www.huffingtonpost.com/entry/white-collar-crime prosecution_564a2336e4b06037734a2f84.))
Not only has there been a significant decline in white-collar criminal prosecutions over the past two decades, but recently a measure was passed by the House Judiciary Committee that, if enacted, will “severely weaken the laws intended to punish and deter white-collar crime.” ((Taub, supra note 2.)) If this bill passes, high-level corporate wrongdoers will likely be able to further escape prosecution. ((Id.)) The bill would eliminate a cause of action for white-collar crimes where the damaging acts are reckless, negligent or grossly negligent. ((See Carter, supra note 9.)) “Current law allows corporate crime prosecutions of high-level managers based on negligent or reckless behavior, the House legislation would require many such offenses to be ‘knowing’ crimes, in which executives were explicitly aware of the activity being conducted by other employees.” ((Id.)) Will this bill get passed? If it does, white-collar prosecutions will continue to decline.
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