Street Crime, Corporate Crime and the Contingency of Criminal Liability

Abstract

This article describes how criminal liability is contingent on two sets of factors: (1) criminal law's alternatives?civil, administrative and even non-legal strategies for addressing wrongdoing, and (2) choices in how we acknowledge social influences, instrumental goals, and the social costs of punishment. Moral culpability is weighed against utilitarian concerns in decisions to impose criminal sanctions. Further, even the assessment of culpability itself is mediated by utilitarian concerns driven by criminal law's alternatives. Conduct that can be effectively addressed non-criminally seems less culpable (despite explicit coverage by criminal law), and that makes utilitarian concerns?and civil sanctions and remedies?more likely to prevail when balanced against the need for retributive judgment of wrongdoing. This dynamic arises because criminal law's long-standing twin rationales, retributivism and deterrence, sometimes conflict in the response they counsel for culpable wrongdoing. In practice, criminal liability is not explained by culpability, nor by the familiar grounds for prosecutorial discretion?state resources limits, first-offense status, or marginal resulting harm. Neither do these considerations explain the wide variance in its use across the landscape of crime, from white-collar to "street" settings. The way we actually employ criminal liability demonstrates the contingency of criminal law, and culpability itself, on civil alternatives and social costs, and this has distributive implications. We use criminal liability for "street" wrongdoing much more than we do for white-collar wrongdoing; that variation cannot be explained by distinctions in those two settings, sets of offenders, or feasible alternative remedies. Yet reasons for it explain why we have yet to move street crime policy in the productive direction that increasingly characterizes white collar policy.