Tuesday, 22 May 2012

Freeganism, Crime and Supermarkets 1: Are freegans criminals?

Freeganism is this. What’s the law’s view on it? That was my question, and I found a very good article on the topic by Dr Sean Thomas in Legal Studies[1]. He suggested that a freegan accused of theft (Mr Droog) could argue that you cannot steal abandoned goods, but noted that in some theft cases rubbish has not been treated as abandoned. He therefore suggested a more fruitful defence would be to say that Mr Droog has not been dishonest under the Ghosh test[2], because there is no requisite ‘moral obloquy’ attached to freeganism. He suggested these things in a very full and nuanced way.

Dr Thomas is obviously sympathetic to freegans, and I must say that I am too. But I’m not sure his article which answers “Do freegans commit theft?” with “No” is all that beneficial to freegans. One, he argues that the ‘crux’ of the matter is that ‘freegans cannot be understood to be harming anyone’. This isn’t as obvious as Thomas seems to suggest. If I own a shop, I want you to buy from me. When you take things from my bin, you don’t buy them from my shelf. My economic interests are harmed. And also, harm is not the crux of the matter. No harm is a good reason not to criminalise an act, but is not correct to say that "no harm" means that a crime cannot have been committed, even when the conditions for criminality are fulfilled.

His analysis of the relationship between abandonment and honesty is more important. The person who openly takes the car that he honestly thinks is abandoned and the scuba-diving, dead-of-night golf ball taker look very different. But if the balls were abandoned, there can be no theft. Thomas points out how honesty and abandonment have been (wrongly) conflated by the courts to just be about naughtiness.

But herein lies the problem. Thomas makes it easier for Fyodor Plc to argue theft. They just need to put signs over there bins saying “this is not abandoned”. This would seal the deal on the abandonment point, and would make it harder for Mr Droog to argue that he was acting honestly.  Freegans would be left only with a “we’re good people doing no harm” 'defence', which I reckon is shoogly at best.

This is an issue of real interest. Freegans probably do a good thing. It would be a shame if they were thieves (and a recent case suggests they are). It’s also a shame that interfering with bins is an offence, as Thomas puts in a footnote. It must be true that in reality, prosecutions aren’t brought very often (it’s not great PR for Fyodor Plc to report freegans to the police). But, in my opinion, what we’re left with are policy questions, because the legal situation does not favour dear old Mr Droog. 

[1] Legal Studies, Vol. 30 No. 1, March 2010, pp. 98–125

Wednesday, 16 May 2012

Executives in Prison

Some Bad Businessmen[1] do go to jail. But what’s that like? I am yet to find an academic paper, or even a decent newspaper article, that discusses actual experience of executives in prison in an in-depth way. The Guardian makes do with pictures of business people who are, or have been, in prison. The issue I'm interested in here is the bite of punishment. Does prison hurt executives more or less than the ordinary man-of-crime?

The argument for prison hurting businessmen more is that they had more to lose in the first place. They can be disqualified from being the directors of companies, ruining their working life before they hear the cell door shut. Even if they are not disqualified, one must assume it’s far harder to get a high-powered position when you’ve done time. Further, the typical image of a businessman conjures up family life and community respect, both of which are liable to be broken by a stint in jail. Maybe just being branded a criminal - and it's associated shame and career damage -  is punishment enough in their sphere of existence.

The counter argument could just run the way Sir Ken Macdonald put it on a (very interesting) BBC Radio show (now offline). On it, he said it was disgusting to argue that as richer people came from communities where family and reputation counted more, corporate criminals should be treated more leniently. But with respect, until studies are done, that’s not a ridiculous starting point. If prison is part-and-parcel of your community’s life, going inside is not the same culture shock as if it is really alien. Of course, you can say that if you have done something really bad, you deserve it, and elsewhere we will discuss the metrics of badness of white collar crime. But here, assuming Mr Businessman and Mr Carjacker have done equally bad things, maybe prison is a worse experience for Mr Businessman. This of course must be caveated - this general idea has to be applied on a case-by-case basis. 

Other, more nuanced, complaints about the treatment of Bad Businessmen exist. Some include the idea that white collar criminals ‘get away’ with an easy life in open prisons, find it easier to conform with prison rules, and get more respect from staff than common-or-garden criminals. But then, conforming to rules should be rewarded, should it not? And, once in prison, it’s hard to see what danger is being posed by white collar criminals such that they should be in cells.

We come across scenarios all the time where wrongdoers’ means and backgrounds are considered in their punishments. Fines from the FA are set very high, because fining a footballer £200 is like fining me 2p. It might be unpalatable that to inflict equal punishment, white collar criminals should have more lenient sentences, but that is an indictment on social inequality, not a reason to punish in a de facto harsher way. 

[1] My use of ‘executives’ and ‘businessman’ is broad and loose, as defended here. And if anyone finds an in-depth article on this idea, let me know!

Saturday, 5 May 2012

Name Calling - 'White Collar Crime'

When I was checking that calling this blog ‘business behaving badly’ wasn’t an unintentional rip-off of any other regular blog/journal/feature, I came across this interesting and broad ranging speech by Christopher Craige, the Director of the CDPP in Australia. It covers many interesting ideas, and is aimed at an audience who knows a thing or two about law and/or crime, but not a huge deal about corporate crime. It is therefore aiming at the same market as I am, and with the same name. I’m pretty sure he won’t mind me using the title for a blog 4 years later.

I also hope he won’t mind me disagreeing with him on one issue. He writes:

In the early 21st century I suggest we can be far more robust in adopting a language that defends and nurtures the free market system whilst saving it from its own excesses. The continued currency of the term “white collar crime” is now unhelpful in this task. Any lingering implication that there is a more benign variety of crime, arising from genteel origins of some corporate perpetrators can surely now be dismissed. Language of this kind is an impediment to retaining community confidence that we have clear-eyed legislative, regulatory, prosecutorial and judicial responses to what are in essence very serious and harmful crimes committed by people in positions of trust and advantage. It is an aggravating fact in a contemporary setting when such crimes are committed by people in the course of occupying very high positions of authority in business.

To have a problem with the term white collar crime is not unique. I didn’t want it in the title of my blog, but not for his reasons.

First, I would argue that the ‘lingering implications’ of ‘genteel’ or ‘benign’ crime are not all that strong. As the trend of developed nations is to take firmer stances towards such behaviour, the umbrella name must matter less. Relatedly, the words ‘white collar’ don’t need to mean gentility.

In fact, the reason I disagree with Craigie is part of the reason I didn’t want to use the term myself. It is vague and its parameters are unclear. David Nelken[1] devotes some time to working out what white collar crime might be. He shows very clearly why the ‘original’ definition given in 1949 by Sutherland[2] pretty hopeless. A crime committed by a ‘person of high status in the course of his occupation’ tells us so very little about what might be going on – it could be financial crime, competition law offences, manslaughter, or whatever. Some scholars have included non-criminal behaviour in ‘white collar crime’ -Sutherland among them. The definition doesn’t help us decide whether any given practice falls within the definition.

If then, the definition is vague, and we can’t apply it easily, because it’s so nebulous, then I find it hard to believe there can be much in the way of lingering connotation. Because it is at once definitive sounding and nebulous in reality, I didn’t want it in the title of my blog. I didn’t want to try and defend whatever I discussed as falling within its ‘meaning’. Instead, I’ve used my own (and Craigie’s!) title.

We could do away with the ‘white collar’ term, if we could convince everyone to rip up lots of textbooks. I don’t think we really need to. In all its cloudy fug, devoid of strict academic meaning, it does at least wave us in the general direction of a group of offences. With time, what comes under white collar crime may well crystallise. And it is useful to have a name or label for a set of offences. The set that Craigie wants to refer us to is not so easily caught within a definitional parameter like, say, sexual offences or traffic offences. If we do away with ‘white collar’ crime (or ‘corporate crime’ – which arguably isn’t a great name either) then we are just left with ‘crime’, which is more useless; or we have to think of a new name. 

Given how hard it is to define the contents of the rather flexible title ‘white collar crime’, one runs the risk of naming something into definition. For example, something like ‘elite crimes’ looks like it rules out any struggling businessman, where ‘white collar’ does not. Further, terms like ours (BBB) are equally nebulous. I only used it because it was nebulous enough that I didn’t have to compare my definition to anyone else’s!

And whatever we call it, who’s to say that lingering genteel and benign connotations would be banished – in talking about competition law it was once said it’s theft by men in nice suits[3]. If there is an element of gentility in these types of behaviours, we can’t oust it simply by using a different name!

[1] In the Oxford Handbook of Criminology. His discussion is very much fuller than mine.
[2] In a book called ‘White Collar Crime’
[3] I can’t now remember by whom.