Intro to Criminology Strategy Paper 1000 words

VIOLENT W HITE-COLLAR CRIME

Andrew Verstein

I n t r o d u c t io n

It is orthodox to divide the universe of crimes according to their violence. There are violent crimes, prototypically street crimes. And there are nonviolent crimes of fraud, prototypically white-collar crimes. Although the implications of this distinction are controversial, the distinction itself is not controversial. * 1 This Essay challenges this universal dichotomy by offering an account of violence th a t adm its m any crimes of deception.

This Essay proceeds in four parts. In P a rt I, it m akes a catalog of th e factors th a t assure th e violence of a given violent crime. P a rt II th en shows how those factors can apply to a great degree in the white-collar context. T hat is, properly understood, violence can be found in the fraudulent foreclosure, the embezzlement, and the forged check.

It should be no surprise th a t in order to find an analogy between street crime and white-collar crime, my account of violence is an extended one, which takes into account factors th a t are not always associated w ith violence. This approach may cause some critics to worry th a t I have smuggled fraud into violence only semantically—th a t my account of violence does violence to the word “violence.” Alternatively, some may worry th a t my account—if it proves anything—proves too much. If fraud is violent, is not everything violent? 2

P a rts III and IV seek to address those objections in a way th a t both mollifies and edifies. These objections are legitim ate, and so

* Assistant Professor of Law, Wake Forest University School of Law. 1. See Tony G. Poveda, White Collar Crime and the Justice Department:

The Institutionalization of a Concept, 17 Crime L. & Soc. Change 235, 241 (1992) (quoting U.S. Dep’t of J ustice, National P riorities for White Collar Crime 5 (1977)).

2. Part of the inspiration for this Essay comes from the distant recollection that some scholars have argued that seemingly benign acts can do violence. See generally Serene J ones, F em inist Theory and Christian Theology: Cartographies of Grace 31-33 (2000) (describing a feminist constructivist approach). Some have even argued that reading to one’s child can be an act of violence. Cf. Bronwyn T. Williams, Boys May Be Boys, but Do They Have to Read and Write That Way?, 47 J. ADOLESCENT ADULT LITERATURE 510, 512 (2004) (articulating the concern with potential consequences of violent readings).

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the process of accommodating them gives the theory of white-collar violent crime its best prospect for making a sustained contribution. P a rt III proposes a lim iting principal to the theory of extended violence, which in tu rn m akes plausible the insight th a t violence is a norm ative and not merely descriptive property. P a rt IV shows th a t the implications of this account are neither trivial nor cataclysmic for theories of appropriate punishm ent.

I. Extending Violence Consider the prototypical violent crime of robbery. Robbery is

the taking of property by force. In w hat ways and for w hat reasons is robbery violent? There are, perhaps, seven distinct ways, though they fit vaguely into three broad categories. Those categories are as follows: (A) the violence im m ediate to the bad act itself; (B) the reciprocal and re su ltan t violence invited of the victim and the community; and (C) the S tate’s role in violently controlling the foregoing.

A. Im m ediate Violence Most obviously, robbery involves a violent process. Robbery is

the taking of property by force. The perpetrator stands in the victim’s path. The perpetrator grasps the victim’s bag. The p erp etrato r disables the victim’s defenses. Force, physicality, and contact are violent processes. Not every step need be violent. Consider the mob boss who orders the m urder of a snitch. Nothing could be less violent th a n the order, but the la te r steps are m anifestly violent.

The mobster’s orders also result in a person losing her life. An act can be violent because of its causal relationship to deprivation and injury. For the mob boss, the chain is attenuated. For the robber, the chain is immediate. Sometimes there is no manifestly violent step in the process, though the result is clearly a violent one. A pharm acist who lies about the contents of a ja r may m urder but w ithout any force or th re a t of force. The violent result for the victim is a second way in which an act may be violent, a p a rt from the relative violence of the process.

B. Reciprocal and Resultant Violence A second category of violence a tte n d an t to an act results from

the wrongdoer’s forceful taking: an act may be violent because of its tendency to cause and perhaps justify reciprocal violence. “It will have blood. They say, blood will have blood.”3

3. William Shakespeare, Macbeth act 3, sc. 4, 1. 125 (Yale Univ. Press 2005).

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The typical robbery victim is probably not ex ante disposed to violence. Few people are very violent, and robbers likely try to avoid those individuals. And yet, it is probable that the robbed are ex post more likely to become violent. When people are the victims of violence, they are invited to violence themselves.

First, the victim will be tempted to engage in self-defense in the moment of violence. The victim may attempt to injure the attacker in order to protect herself or her property. The violence of the mugging would be lessened if we knew that victims always do as the robber wishes. But we know they do not always capitulate, and that a robbery may result in a street brawl in which ordinary citizens take, and perhaps are justified in taking, far more violent measures than they ever imagined.4 Perhaps we need to code our concern for this spillover result in terms of spillover—we worry that the brawl may injure a bystander—but we are nevertheless worried that the robber both enacts an immediate violence and then dares another to enact her own.5

Second, after the incident, the victim may engage in self-help to recover her stolen chattels.6 She may seek out the wrongdoer and attempt to recover the goods. This self-help, too, puts the normally peaceful citizen in the role of robber herself.

Third, the victim may also pursue retribution, hoping to restore her self-esteem, social standing, or the universe of justices. She may be violent to the wrongdoer in a way that is non-zero-sum and morally charged. She, or perhaps, her friends and family, may pursue extra compensatory punition. We may fear this for its own sake—the violence of robbery is that it makes vigilantes of others7 —or because it tends to get out of control. The Hatfields killed the McCoy’s for their violence, and they were again killed by them.

The victim’s reciprocal violence may be proportional, appropriate, and justified. In that case, it still will be violent. Surely one part of the violence of the mugging is that it turns regular people into violent people. Worse yet, the reciprocal violence may be excessive and unjustified. The desire for revenge can be strong. Once the victim’s ordinary barriers to action are overcome,

4. See, e.g., Tables Turn on Fontaine Avenue Robbery Suspects, NBC29 (Sept. 12, 2013, 6:21 PM), http://www.nbc29.com/story/23292478/tables-turn-on- fontaine-avenue-robbery-suspects.

5. Where the violence creates substantial third-party effects, it is clearly an externality. But it is not ju st an externality, since the victims may themselves become authors of violence.

6. E.g., Justin Fenton, Man Shot by Police Friday Was Chasing Robber, Balt. Sun (June 9, 2014, 10:25 PM), http://www.baltimoresun.com/news /maryland/crime/blog/bs-md-ci-fremont-police-involved-shooting- 20140609,0,7171685.story.

7. See id.; see also Bruce A. Jacobs & Richard Wright, Moralistic Street Robbery, 5 4 CRIME & DELINQ. 5 1 1 , 5 1 2 (2 0 0 8 ) (explaining how retaliation from robberies is both expected and self-perpetuating).

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it is predictable th a t some portion of the victims will become wrongdoers them selves.8

Indeed, th e robbery may unleash violence beyond the mere dyad of th e p erp etrato r and h er victim. The victim may lash out in fru stratio n against others, or she may find th a t it is easier to restore her lost w ealth through violence against th ird parties th a n against the robber.9 Or someone, the victim, an onlooker, or a th ird party, may be more likely to resort to violence merely because the robbery normalizes violence in the community. Every tim e you h ear about a robbery in your neighborhood, you might be more likely to be rough w ith your neighbors. “T hat is w hat we do here.” And maybe it is a landlord speeding up eviction by physically removing a scofflaw ten an t. Or maybe it is a youth who finds less isolation and opprobrium in a violent b u t profitable crim inal enterprise. In any case, th ere is a sense in which violence begets a culture of violence, which begets more violence.

This tendency can be viewed through m any windows, b u t one is the logic of collective action. A law-abiding and nonviolent community is a good th a t all can share. Where people share in a collective good and believe th a t others are abiding by its rules, they tend to do so as well.10 B ut when others appear to defect, defection ra te begins to rise .* 11 Even misperceptions from highly vocal defections can have a significant effect and lead to a downward sp iral.12 The injury to public norms is central to our understanding of why violent crime is a crime and not ju st a tort.

C. State Violence There is another sense in which robbery is violent, and it is one

Robert Cover would have known well.13 The violent act compels the S tate to respond w ith violence. When a robber robs, she invites and dem ands the S tate to punitively suppress her violence. There will often be a prison sentence. In America this will involve intended, and unintended b u t tolerated, abuses of her safety and wellbeing. Prior to th a t, there will be a trial, in which the robber is compelled

8. Lee Ellis et al. , Handbook of Crime Correlates (2009) (finding th a t crim inals are more likely to have been victims of crime).

9. Jacobs & Wright, supra note 7, at 517. 10. Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and

Law, in Moral Sentiments and Material Interests: The F oundations of Cooperation in Economic Life 339, 357 (Herbert Gintis et al. eds., 2006).

11. Cf. George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, ATLANTIC (Mar. 1 1982, 12:00 PM), http://www.theatlantic.com/magazine/archive/1982/03/broken-windows /304465/5/ (developing the theory of “broken windows” and their contagious effect on a community).

12. Kahan, supra note 10. 13. See generally Robert Cover, Violence and the Word, 95 Yale L.J. 1601

(1986) (explaining the violent implications of legal interpretation).

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to obediently enact h er defendant role, aw are th a t th e kabuki play is enforced by handcuffs and billy clubs.

In th is process, a panoply of state actors m ust live lives of procedural and substantive violence. The prison guard. The bailiff. The judge. Each m ust become inured to her role in a violent machinery.

Not only might th e S tate have to violently respond to the robber, it may be compelled to violently m itigate the web of violence—the reciprocal violence and the culture of violence. It may have to stop the private vengeance, self-help, self-defense, and copycat crimes th a t the robber inspires. When private citizens respond w ith unjustified b u t invited violence, the S tate m ust suppress them —and th a t is a shame. The S tate could be a justice- bound entity. It could ju st solve collective action problems and equalize problems of moral luck. Its agents could be philosopher kings and public servants. Instead, they m ust be prison guards, executioners, and grim judges.

To summarize, a robbery is violent in two proxim ate senses, procedural and substantive: the violent acts and th e violent results to the victim. But it is violent in several other senses as well. It invites and causes a web of reciprocal violence, through the self- defense, self-help, and retribution of victims, and it underm ines our collective expectations of peacefulness, which may multiply violence even further. Finally, law is steeped in violence, b u t most im m ediately and justifiably because law reacts to a w ash of violence.

II. W h it e -Co lla r V io l e n c e In w hat sense can a white-collar crime be violent? The answer

depends not only on our account of violence, elaborated above, but also on an account of white-collar crime. Early accounts, such as the one offered by Edwin Sutherland, defined white-collar crime as, essentially, any crime committed by a respectable person. 14 So, perhaps, if an executive menaces and coerces her underlings, the fact th a t this happens a t an office makes it white-collar violence. B ut th a t is not very in terestin g . 15

14. Edwin H. Sutherland, White Collar Crime 9 (1949) (“White collar crime may be defined approximately as a crime committed by a person of respectability and high social status in the course of his occupation.” (footnote omitted)).

15. Nor does it capture the working-class character of many white-collar crimes. Gilbert Geis, Doing Justice, 73 JUDICATURE 344, 344 (1990) (reviewing Stanton Wheeler et al., Sitting in J udgment: The Sentencing of White- Collar Criminals (1988)) (“[T]he term white-collar crime has been used to embrace a large number of trivial offenses sometimes committed by marginal persons. In their sample of white-collar offenders, for example, 30 to more than 40 per cent of the women and about one-fourth of the men convicted of postal fraud, credit fraud],] and false statements and claims were unemployed when they committed their crimes.”).

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More recent and widely accepted accounts focus on fraud.16 For example, the D epartm ent of Justice defines white-collar crimes as “those classes of non-violent illegal activities which principally involve traditional notions of deceit, deception, concealment, m anipulation, breach of tru st, subterfuge or illegal circumvention.”17 Can fraud, which is so frequently contrasted to force, be violent? Can a forgery, a ponzi scheme, or an embezzlement be violent? This P a rt examines white-collar crime under the extended notion of violence discussed in the first P art. Though white-collar crime is only barely violent in the procedural sense, all the other senses of violence can be realized in white-collar crime. The resu lt is th at, unless we care only about the procedural sense of violence as involving force in its im m ediate perpetration, we should reject as false the dichotomy between white-collar crime and violent crime.

Our principal case in th is P a rt will be one of a wrongful mortgage foreclosure. The wrongdoer made a low documentation loan to the borrower. The wrongdoer unlawfully m isrepresented its term s as more favorable th a n they are, and th en la te r attem pted to foreclose on the document based on m isrepresentations to the court about the borrower’s paym ents and the wrongdoer’s own efforts to cure. The wrongdoer lies her way into the loan and lies h er way out through foreclosure.

A. Im m ediate Violence Im m ediate violence, recall, concerns the violent process of the

wrongdoing and its unfortunate results for the victim. By definition, fraud involves no im m ediate force or th re a t of force,18 reducing the prevalence of im m ediate violent processes. Yet th e mob boss’s phone call sets a h it m an in motion. We are comfortable finding violent processes where principals in stru ct violence in th e ir agents. And fraud can do th a t. O ur mortgage frau d ster forges the borrower’s nam e on documents or tricks her into signing things th a t she should not sign. And soon enough the sheriff or a private company will arrive to foreclose upon th e house, lock the doors, remove the property, and forcibly remove th e occupant.19

White-collar crime can easily lead to violent results. Wrongful and fraudulent mortgage practices can leave people w ithout shelter. Any financial crime can leave its victims w ithout money they need to m aintain a reasonable quality of life. While fraud contributed to

16. See Poveda, supra note 1. 17. See id. 18. See Ellen S. Podgor, Criminal Fraud, 48 Am. U. L. Rev. 729, 737-39

(1999) (discussing the concept of fraud with no indication violence plays a role in fraud).

19. See, e.g., Todd Ruger, Bank Changes Locks on Occupied, Foreclosed Homes, H erald-Trib. (Oct. 4, 2010, 1:00 AM), http://www.heraldtribune.com /article/20101004/ARTICLE/10041051?p=l&tc=pg.

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the glamour of Enron in its good days, the fruit of crime ruined the enterprise and its many constituents. More than 1400 employees lost their retirement savings and 4000 lost their jobs, in addition to the nonemployee victims.20 This effect can propagate widely: one study found that a 1.4% increase in fraud “decreases employment growth by about 40 basis points, suggesting that local waves of corruption can have a lasting material effect on the local economy.”21

It is not just money and shelter that white-collar crime can take. “[M]any white-collar offenses (environmental pollution, Medicare fraud) result in much more extensive physical harm than street crimes.”22 To pollution-caused illness and deprivation of medicine, we might add the injuries incurred by breach of safety regulations, the sicknesses incurred by fraud as to product safety. These white-collar offenses may not involve force, but they have a result that is as physical and, well, as violent as any traditional violent crime.

B. Reciprocal and Resultant Violence Whatever advantage traditional street crime may have over

white-collar crime in immediate violence is likely altered once we widen our view to include reciprocal and resultant violence. Although it is natural to think that violent crime tends to multiply violent crime, there are actually good reasons to suspect a greater relative impact resulting from white-collar crime.

First, victims of white-collar crime are, by definition, being outfoxed or outmaneuvered in the nonphysical realm. Why should it not be rational, or at least tempting, for the victim to look elsewhere for an advantage in the realm of force?23 Stories of violent home defense, in the face of eviction, are legion.24 Efforts to defend

20. Kurt Eichenwald, Audacious Climb to Success Ended in a Dizzying Plunge, N.Y. T i m e s , Jan. 13, 2002, at A6. On the harms of involuntary job loss, see Mathis Schroder, Jobless Now, Sick Later? Investigating the Long-Term Consequences of Involuntary Job Loss on Health, 18 ADVANCES LIFE COURSE RES. 5, 9 (2012); Christopher P. Yost, The Worker Adjustment and Retraining Notification Act of 1988: Advance Notice Required?, 38 Cath. U. L. R e v . 675, 680 (1989) (discussing rationales for federal regulation of large firings).

21. Christopher A. Parsons et al., Peer Effects and Corporate Corruption 4 (Dec. 16, 2013) (unpublished manuscript), available at http://sfs.org/wp-content /uploads/2014/03/Peer-Effectsl.pdf.

22. Geis, supra note 15, at 350. 23. Indeed, as Professor Rebecca Morrow, Assistant Professor of Law at

Wake Forest University School of Law, has suggested to me about her family law cases, it is often the putative victim who is the only one to actually become violent. Isolated and afraid, violence appears to be the victim’s only remaining tool.

24. One Modesto, California, man was evicted from his family’s home for generations because of a $15,000 home equity loan. He shot a police officer and a locksmith. Associated Press, Cops Find Charred Body in CA Home After Standoff, CBSNEWS (Apr. 13, 2012, 8:07 PM), http://www.cbsnews.com/news

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property may be deferred, precipitating violent recovery efforts.25 Where recovery is impossible, the victim of foreclosure or eviction could undertake revenge.26 Victims of white-collar crime may respond for reasons quite a p art from the m aterial deprivation itself—the indignity of victimhood may lead to dangerous instability.27

The societal effects of white-collar crime are surprisingly likely to cause spillover. Continuing w ith wrongful or fraudulent foreclosure processes, we know th a t foreclosures cause widespread social harm s. All foreclosures seem to have negative im pacts on the community too. Violent crimes go up by almost seven percent for every three foreclosures in an ordinary neighborhood.28 Perhaps this is because these foreclosures motivate evictees to restore th eir security a t th eir neighbors’ expense, or perhaps because it signals th a t this is not a safe and cooperative place and th a t everyone m ust protect herself.29

One interesting fact is th a t th e spillover and societal effects of fraudulent behavior may be more likely to multiply widely th a n are the effects of violent crimes. First, we know some things about how stre et crime and ordinary violence propagate in communities. Tracey M eares has shown th a t the channel by which crime spreads is social ra th e r th a n geographic.30 T hat is, if you know someone who is injured through physical violence, you are quite likely to become a victim yourself. B ut if you do not, th en you are not. T hat holds true

/cops-find-charred-body-in-ca-home-after-standoff/; Matt Stoller, Mark Ames: Death by Foreclosure Killings and S taff Sgt. Roger Bales, Naked CAPITALISM (Apr. 17, 2012), http://www.nakedcapitalism.com/2012/04/class-warfare-on-two- fronts-from-afghanistan-to-middle-america-the-untold-story-of-sgt-bales.html; accord Titshaw v. State, 179 S.E. 641, 641 (Ga. Ct. App. 1935).

25. Occupy Homes M N to Rally Against Third Eviction Attempt of Cruz Home, OccupyOurHomes (May 27, 2012), http://occupyourhomes.org/blog/2012 /may/27/mn-cruz-third- attempt/.

26. Evicted Tenant Kills for Revenge, Wilmington Morning Star, Nov. 11, 1972, at 10, available at http://news.google.com/newspapers?nid=1454&da t=19721111&id=gLgsAAAAIBAJ&sjid=2wkEAAAAIBAJ&pg=1276,2438281.

27. Richard McAdams describes how “Hobbes is keenly interested in the fact that [dishonoring someone] will predictably lead to the use of force.” Richard H. McAdams, Epstein on His Own Grounds, 31 San Diego L. Rev 241 247 (1994).

28. Deborah Spence, Do Foreclosures Lead to Increased Violent Crime? A Look at the Research Behind the Headlines, Community Oriented Policing Services, http://cops.usdoj.gov/html/dispatch/September_2008/violent _crime.htm (last visited July 26, 2014).

29. We know that home foreclosures carried out under color of law lead occupants to violently resist eviction. And fraudulent foreclosures may produce even more resistance if homeowners are at all responsive to claims of right.

30. Cf. Tracey L. Meares, Mass Incarceration: Who Pays the Price for Criminal Offending?, 3 CRIMINOLOGY & Pub. Pol’y 295, 296 (2004) (emphasizing the impact of personal relationships and network connections over the geographical layout of a neighborhood).

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even in “dangerous” communities. Though public housing projects are more dangerous than suburbs, and though black youths have more dangerous lives than white adults, still, black youths in housing projects who do not know someone who was killed are likely to live a relatively safe life. Indeed, Meares’s research shows that in one data set of killings in Chicago, every victim was socially acquainted with one of a few dozen high-risk individuals.31 Avoid the acquaintance of those individuals and you are unlikely to be involved with violence. This is consistent with the propagation of violence from violence, but it suggests that killings are much more discretely channeled. Though it is certainly possible, there is no research that indicates similar attributes of white-collar crime.

Indeed, we have some reason to expect that white-collar crime propagates differently. There is some indication that those white- collar crimes committed in organizations—embezzlement, fraud, ordinary hustling—are made more acceptable and common by employees’ sense that everyone is up to the same thing.32 It is intuitive that business crimes become more common once people assume that business is just a cutthroat game.33 This suggests a broader path for the breakdown of the cooperative equilibrium.

Third, many white-collar crimes are partially composed of behaviors that are otherwise lawful. It is only in light of some other normative context that they become wrongful. Where many acts are not malum in se (or are, but only subtly), community cues may be essential to demark the unacceptable from the competitive. So, while there are no presumptively valid batteries, there are lots of presumptively valid sales of securities—it is only when material, nonpublic information is in the head of the seller that things become problematic.34 While there are no presumptively valid robberies, there are lots of presumptively valid foreclosures. It is only through the incorporation of additional unacceptable behaviors or facts that the latter becomes a crime, let alone a violent one. With common conscience less applicable and a contextual analysis more important, the culture of wrongdoing implicated in the white-collar context is perhaps more likely to take root.

31. Andrew V. Papachristos & Christopher Wildeman, Network Exposure and Homicide Victimization in an African American Community, 104 Am. J. Pub. Health 143, 147 (2014).

32. E.g., Stephen M. Cutler, Speech by SEC Staff: Second Annual General Counsel Roundtable: Tone at the Top: Getting It Right, SEC (Dec. 3, 2004), https://www.sec.gov/news/speech/spchl20304smc.htm (discussing “tone at the top”).

33. See id. 34. See Samuel W. Buell, Is the White Collar Offender Privileged?, 63 DUKE

L.J. 823, 841 (2014).

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C. State Violence Sometimes the bad guy wins, a t least for a while. When a

foreclosure is wrongful, it is still a foreclosure. And foreclosures are not often pretty. Where homeowners resist eviction, the State may be called upon to heap insult upon the now-violent victim’s injury. The news is replete w ith stories, b u t go to Westlaw for the really sad stuff.35 One crim inal trial in South D akota describes a m an who refused to leave his farm when the bank could not work out his loan.36 After letting him m ake a series of th reats, the police broke a glass ketchup bottle across his face.37 Pictures of the injured defendant are included in the tria l court opinion.

Of course, state violence will be called upon to suppress any crim inal activity perp etrated by the victim or those who are tem pted to crime by observing its prevalence. In this respect, white-collar crime invokes state violence in th e same way, and to the same degree, as traditional violent crime.

III. B o u n d in g V io l e n c e

The foregoing P a rt showed the ways in which white-collar crime can fit m any accounts of violence. This P a rt tre a ts an objection th a t m ight th re a ten this Essay’s exploration: while the wrongful foreclosure multiplies violence, so too does the rightful foreclosure. If the forgery creates a risk th a t its victim will go w ithout medicine or housing, so too does ordinary and lawful debt collection.38 I have noticed th a t there is violence in everything we do, or a t least in much of w hat we do in a late-capitalist economy. For some, this macro thesis is attractive, and for them, this Essay’s flaw is th a t it fails to realize its fellow travelers.

B ut for most, the possibility th a t so much should be “violent” would be a reductio ad absurdum. This Essay’s argum ent, if true, proves too much. If everything is violent, th en nothing is. This objector will propose th a t we instead reserve the term violence for ju st procedural violence, or perhaps both sorts of im m ediate violence. We can concede th a t m any acts tend to cause violence w ithout im puting to those acts the violence th a t follows. A robbery is bad in p a rt because it tends to multiply violence in the world, but th e m ultiplication does not thereby render it violent.

Although these are both powerful objections, they can be plausibly rejected. And th e ir rejection points toward the first insight gleaned from this Essay’s speculative account of violence. Kejection of these objections comes from recognizing the absolving

35. See, e.g., State v. Dale, 379 N.W.2d 811 (S.D. 1985). 36. Id. at 812. 37. Id. 38. But see Tables Turn on Fontaine Avenue Robbery Suspects, supra note

4 .

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function of role-appropriate behavior within an ethically justified system. Put simply, the wrongfulness and violence of an act normally are just the sum of their parts. We are normally responsible for the evils we mete out upon the world. But the calculus is different when we occupy an important role within an ethically justified system.

The most intuitive example of this, at least to many of us, is the special moral stance of the attorney. While most of us are morally culpable for our silence if our silence leads to violent injustice, the lawyer need not be. If she knows her client A is guilty of X, and so a recently convicted third-party B cannot be guilty of X, our attorney cannot take the natural step of saving B. Her role as a lawyer prevents her from divulging A’s secret. B’s blood is not on our lawyer’s hands, though it would have been if our attorney were just a waiter that had overheard A’s confession. Likewise, the bailiff or prison guard may form the subjective belief that B is innocent, but she may not properly take steps to free B. Like the lawyer, she occupies a role within a system and that role annuls the normal implication that all are charged with the moral consequences of their acts. The justice system would not work, or would not work well, or would not work as we have legitimately intended it, without widespread acceptance of otherwise immoral behaviors. The morality of the system overrides the presumption that the natural and predicted consequences of a person’s actions are imputed to her.

The same is often true in a business setting. 39 While it is wrong to assume that all is fair in capitalism, 40 an assumption that a capitalist system like ours is broadly legitimate entails a role- selective exemption from everyday moral inferences. Capitalism licenses competitive behavior, regardless of whether it is unkind or leaves our competitors in terrifically bad shape, because it is essential to a system that is generally justified.

Sporting exhibits a similar dynamic.41 Normally, if you take actions that you hope will frustrate another person’s life-long ambitions, we will say that you are a dream wrecker and that your actions were dream-wrecking actions. But we say no such things of an athlete who trains more rigorously, knowing and hoping that it will deprive some other competitor of her life’s dream. This is because we know that sports are a social good, and they are only better if people train enough to beat one another. And so a selective exemption from the everyday moral implications of her actions is afforded to the athlete.

39. See generally Joseph Heath, An Adversarial Ethic for Business, 72 J. BUS. ETHICS 359 (2007), available at http://homes.chass.utoronto.ca/~jheath /Adversarial%20Ethic.pdf.

40. See generally David Gauthier, Morals By Agreem ent (1986). 41. See generally James D. P h illip s & Linda DeLeon, Adversarial Ethics:

Winning, Losing, and Playing the Game, 7 PUB. INTEGRITY 169, 170 (2005).

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While business innovation and rigorous train in g may be exempt from ordinary m orality because they tend to support a socially valuable activity, not all behaviors do. F rau d in business, like cheating in sports, does not support the operation of a generally legitim ate system. To the contrary, it underm ines it.42 While there may be only a small difference between m arketing and fraud, one who crosses th a t line leaves th e realm of role-related moral license. She is once again charged w ith th e n a tu ra l and expected implications of h er choices.

This distinction is why it is appropriate to charge the fraudulent foreclosure w ith the force used in eviction, th e deprivation of the victim, the reciprocal violence perp etrated by the victim, and the rise of violence in the community. The reason is th a t these really are the implications of the fraudulent foreclosure. The nonfraudulent foreclosure may have the same actions, b u t its consequences are not charged to the bank because lawful and proper foreclosures are an essential p a rt of a socially beneficial enterprise of residential lending.

An argum ent of th a t sort should be able to satisfy the concern th a t everything becomes violent under th e lens of extended violence presented in this Essay. This analysis serves a purpose greater th a n fencing off objections. It is the opportunity to notice something interesting about violence—it is a norm ative label, ra th e r th a n a descriptive one.

It is n a tu ra l to th in k th a t violence is a nonnorm ative fact about an act (“she gave him a black eye”), about which we th en develop a norm ative stance (“and, boy, did he have it coming!”). This instinct is seemingly incorporated into the extended notions of violence discussed in this Essay—th e tendency to recrim ination and state violence is a b ru te fact or, anyway, a prediction of one. It is not obviously norm atively crafted. Yet to stop the slide down the slippery slope, we have resorted to a norm ative evaluation.

W hether an act is violent depends on which consequences we charge the act (and actor) with. If we approve of an act in the context of a broader system, we may not charge the actor w ith its ordinary consequences; no such exemption is afforded bad actors. For example, I say “do it” and someone dies: were those words violent? If I wrongfully sought to commission a m urder, th en I am charged w ith the violence. But if my instructions were to authorize a loan to a group of explorers—facilitating them th e ir dream s, but aw are th a t it is probable th a t the act of exploring will probably claim a t least one life th a t m ight instead be saved—th en my act is a morally n eu tral or laudable one. By conducing to a legitim ate

42. See Bahram Soltani, The Anatomy of Corporate Fraud: A Comparative Analysis of High Profile American and European Corporate Scandals, 120 J. Bus. Ethics 251, 251 (2014).

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system of commerce and exploration, it absolves me of many of its consequences. We will call it neither a bad act nor a violent one.

What began as an objection concludes with an insight: violence is, at least outside of its immediate results and process, a normative opinion rather than an empirical observation.

IV. Sanctions and Considerations We might reasonably ask what turns on this analysis. We

already know that white-collar crime is bad, so is its “badness” magnified by the observation that it is violent?

There is a robust debate about whether white-collar criminals should be punished more or less harshly than they now are, and more or less harshly than are violent street criminals.43 Certainly, white-collar criminals used to benefit from very light sentences.44 Many suspected that street criminals are unfairly judged to be more blameworthy for their willingness to use force, while the truth is more that they simply lack access to the trust networks necessary for more civilized crimes.45 Those who would reduce the disparities between violent and nonviolent crime may find some attraction in a wide notion of violence.

Yet, white-collar sentences are stiffer now than they once were46 and enjoy tougher pretrial procedures than street crime,47 leading a growing voice in the academy to ask for lighter treatment for white- collar criminals than they currently get, drawing their points of comparison from street crime. For example, Miriam Bair expresses exasperation that Bernie Madoff received, and that the public

43. See, e.g., J. Kelly Strader, White Collar Crime and Punishment: Reflections on Michael, Martha, and Milberg Weiss, 15 Geo. Mason L. Rev. 45, 45-47 (2007) (presenting two sides of a contentious issue in American society).

44. United States v. Davis, 458 F.3d 491, 492-93 (6th Cir. 2006), vacated, 552 U.S. 1088 (2008) (sentencing defendant to one day for each conviction to be served concurrently, after a two-count conviction of bank fraud where the recommended sentence was thirty-seven months); Buell, supra note 34, at 833; see also Matthew C. Ford, The Fourth Amendment Hearing: Prompt Judicial Review of All Fourth Amendment Conduct for an Imprisoned Defendant, 55 Cath. U. L. Rev 473 (2006); Matthew A. Ford, White-Collar Crime, Social Harm, and Punishment: A Critique and Modification of the Sixth Circuit’s Ruling in United States v. Davis, 82 St. J ohn’s L. Rev. 383, 385 (2008).

45. Buell, supra note 34, at 831—32, 838, 840 (juxtaposing a white-collar criminal as a nonviolent, usually corporate offender who is more invested in his network with a violent, “street” criminal).

46. Guideline sentences for accounting fraud can, for a first-time offender, require a life sentence. Miriam H. Baer, Choosing Punishment, 92 B.U. L. Rev. 577, 626 (2012); cf. Christine Hurt, Of Breaches of the Peace, Home Invasions, and Securities Fraud, 44 Am. Crim. L. Rev. 1365, 1368 (2007) (“These new penalties reflect our society’s fears for our retirement castles and peaceful capital marketplaces.”).

47. Donna A. Balaguer, Venue, 30 Am. Crim. L. Rev. 1259, 1271 (1993).

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accepted, a punishm ent for this con m an which was on the order of th a t imposed on “a violent gang leader.”48

An extended theory of violence probably cannot move th e needle on this debate by simply declaring th a t, because white-collar crime is violent, it is therefore w orthy of h arsh er penalties. Such a conclusion would call for far more analysis th a n the semantic footwork in th is Essay, particularly since white-collar crime genuinely differs in its relationship to violent procedures, which may be w hat m atters most to some observers anyway.

Still, an extended theory of violence, by noticing the violent aspects of a crime other th a n its process, offers a new perspective from which to evaluate the wrongfulness of the act. It avoids the forced dichotomy between the victim’s perspective—in which the stre et crime involves a violent process and is presum ptively more blam eworthy—and the p erp etrato r’s perspective, in which purported revulsion a t “violent” crimes m asks intolerance for society’s less privileged.

Instead, we can take th e wider social point of view, noticing the web of interactions in the recrim ination and state-violence branches of an act’s violence. On these axes, some putatively nonviolent acts are actually ra th e r violent. These acts deserve opprobrium th a t is tinged by our sense of the violence th a t was enacted. For example, activities leading to wrongful foreclosure are not ju st sharp business practices—they are the lesser b u t parallel equivalents of the m obster’s contract killing. The veneer of civility, because of the w eaker procedural sense of violence, conceals cascading waves of violence.

Conversely, some ra th e r n asty white-collar crimes are relatively nonviolent. For example, consider identity theft. A p erp etrato r im personates the victim in order to obtain credit. H er credit record is ruined, and after months of inconvenience, she is still never made financially or emotionally whole. This is an invasive and damaging act. But how violent is it? There is no use of force. The deprivation and alienation the victim suffers counts as some am ount of im m ediate results violence. But the rest? It is unlikely th a t the victim will engage in self-defense since there is no in-tim e act of self- defense. Self-help is impossible since the victim cannot forcibly recover h er identity;49 w hat would th a t even mean? She may wish for revenge but she will not get it. The perpetrator is anonymous, and she is likely far away. Will this crime m ake th e victim or others more likely to p erp etrate h er own crimes? Perhaps, b u t the victim

48. Baer, supra note 46; cf. Hurt, supra note 46 (“These new penalties reflect our society’s fears for our retirement castles and peaceful capital marketplaces.”).

49. Contra F ed. Trade Comm’n, Guide for Assisting Identity Theft Victims (2013), available at http://www.consumer.ftc.gov/articles/pdf-0119-guide -assisting-id-theft-victims.pdf.

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certainly won’t respond in kind. Identity theft is technologically difficult and requires an extensive criminal netw ork.50 For all these reasons, th e S tate is unlikely to be dragooned into violent practices, suppressing the victim or the perpetrator. For all of the evils of identity theft, it is wise to notice the lim its on its violence. If our laws are m eant to be sensitive to the totality of violence, we may wish to check our anger against th e identity thief. The n a tu ra l contrast is against everyday scams, which can create turm oil in a community, sometimes involving the scammer too.

C o n c l u s i o n

This Essay sought to bridge th e gap between violent crime and white-collar crime by offering a definition of violence capacious enough to include many crimes of fraud. Boundaries on this principle involve norm ative judgm ents. If successful, this inquiry cannot bluntly resolve longstanding debates about th e wrongfulness of fraudulent activity, b u t it can lend some sophistication in discrim inating among otherwise equivalent acts. Of course, much tu rn s on w hether this account of violence is informative enough to be useful w ithout “doing violence” to our everyday notion of violence.

50. J erome P. Bjelopera & Kristin M. Finklea, Congressional Research Service, Organized Crime: An Evolving Challenge for U.S. Law Enforcement 13-14 (2012), available at http://fas.org/sgp/crs/misc/R41547.pdf.

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