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The Road Not Taken: The Elusive Path to Criminal Prosecution for White-Collar Offenders

Published online by Cambridge University Press:  02 July 2024

Susan P. Shapiro
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Abstract

In the control of stock fraud, criminal prosecution is the road not taken: only six of every hundred parties investigated by the Securities and Exchange Commission ultimately stand in judgment before a criminal court. This paper examines the role of criminal prosecution in controlling securities violations. It traces the SEC enforcement process in which most stock swindlers are diverted from criminal prosecution and treated civilly or administratively or spared legal action entirely. It finds that the criminal process attracts the most significant offenses, but also those about which little else can be done. In this light, the paper reconsiders the controversial finding that upper status white-collar offenders fare no better and often worse than their lower status counterparts at criminal sentencing. It finds a double standard, but one with some surprising implications.

Type
Research Article
Information
Law & Society Review , Volume 19 , Issue 2 , 1985 , pp. 179 - 217
Copyright
Copyright © 1985 by The Law and Society Association

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Footnotes

*

An earlier version of this paper was presented at the 1984 annual meeting of the American Society of Criminology. I am grateful to Katherine Hughes and especially Richard Lempert for their comments and suggestions and to the Russell Sage Foundation for its support. This research was funded in part by Grant 78NI-AX-0017 from the National Institute of Justice, U.S. Department of Justice. The research was undertaken with the permission of the U.S. Securities and Exchange Commission. The SEC, as a matter of policy, disclaims responsibility for private publications. The views and conclusions expressed herein are those of the author and do not necessarily reflect the views of the Commission, its staff, or the official position or policies of the U.S. Department of Justice.

References

BLUMSTEIN, Alfred, COHEN, Jacqueline, MARTIN, Susan E. and Michael H., TONRY (eds.) (1983) Research on Sentencing: The Search for Reform, Vol. I. Washington, DC: National Academy Press.Google Scholar
BOLAND, Barbara, BRADY, Elizabeth, TYSON, Herbert and John, BASSLER (1983) “The Prosecution of Felony Arrests, 1979.” Washington, DC: U.S. Department of Justice.Google Scholar
BRUCK, Connie (1980) “Waning Days for the Zealot at the SEC,” The American Lawyer 16 (November).Google Scholar
CARY, William L. (1964) “Administrative Agencies and the Securities and Exchange Commission,” 29 Law and Contemporary Problems 653.Google Scholar
CLARK, Ramsey (1970) Crime in America: Observations on Its Nature, Causes, Prevention and Control. New York: Simon and Schuster.Google Scholar
CLINARD, Marshall B. and Peter C., YEAGER (1980) Corporate Crime. New York: Free Press.Google Scholar
EWICK, Patricia (1984) “Redundant Regulation: Sanctioning Broker-Dealers.” Paper presented to the annual meeting of the Law and Society Association, Boston.CrossRefGoogle Scholar
FARRAND, James R. (1976) “Ancillary Remedies in SEC Civil Enforcement Suits,” 89 Harvard Law Review 1779.Google Scholar
FORST, Brian, Judith, LUCIANOVIC and Sarah J., COX (1977) What Happens after Arrest? A Court Perspective of Police Operations in the District of Columbia. Washington, DC: Institute for Law and Social Research.Google Scholar
KARMEL, Roberta S. (1982) Regulation by Prosecution: The Securities and Exchange Commission vs. Corporate America. New York: Simon and Schuster.Google Scholar
KATZ, Jack (1979) “Legality and Equality: Plea Bargaining in the Prosecution of White-Collar and Common Crimes,” 13 Law & Society Review 431.Google Scholar
KLEPPER, Steven, Daniel, NAGIN and Luke-Jon, TIERNEY (1983) “Discrimination in the Criminal Justice System: A Critical Appraisal of the Literature,” in A. Blumstein et al. (eds.), Research on Sentencing: The Search for Reform, Vol. II. Washington, DC: National Academy Press.Google Scholar
LEVINE, Theodore A. and Edward D., HERLIHY (1977) “SEC Enforcement Actions,” 10 Review of Securities Regulation 951.Google Scholar
MILLER, Judith (1979) “S.E.C.: Watchdog 1929 Lacked,” New York Times D1 (October 31).Google Scholar
NAGEL, Ilene H. and John L., HAGAN (1982) “The Sentencing of White-Collar Criminals in Federal Courts: A Socio-Legal Exploration of Disparity,” 80 Michigan Law Review 1427.Google Scholar
RABIN, Robert L. (1972) “Agency Criminal Referrals in the Federal System: An Empirical Study of Prosecutorial Discretion,” 24 Stanford Law Review 1036.Google Scholar
RATNER, David L. (1978) Securities Regulation in a Nutshell. St. Paul: West Publishing Company.Google Scholar
SHAPIRO, Susan P. (1980) “Detecting Illegalities: A Perspective on the Control of Securities Violations.” Unpublished doctoral dissertation, Yale University.Google Scholar
SHAPIRO, Susan P. (1984) Wayward Capitalists: Target of the Securities and Exchange Commission. New Haven: Yale University Press.Google Scholar
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS OF THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE OF THE HOUSE OF REPRESENTATIVES, 94th Congress, 2nd Session (1976) Federal Regulation and Regulatory Reform. Washington, DC: U.S. Government Printing Office.Google Scholar
SUTHERLAND, Edwin H. (1949) White-Collar Crime. New York: Holt, Rinehart and Winston.Google Scholar
THOMFORDE, Fredrich H. Jr. (1975) “Patterns of Disparity in SEC Administrative Sanctioning Practice,” 42 Tennessee Law Review 465.Google Scholar
TREADWAY, James C. Jr. (1975) “SEC Enforcement Techniques: Expanding and Exotic Forms of Ancillary Relief,” 32 Washington and Lee Law Review 637.Google Scholar
U.S. DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS (1983) Sourcebook of Criminal Justice Statistics—1983. Washington, DC: U.S. Government Printing Office.Google Scholar
U.S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION (1983) Uniform Crime Reports for the United States. Washington, DC: U.S. Government Printing Office.Google Scholar
U.S. DEPARTMENT OF THE TREASURY (1979) Annual Report. Washington, DC: U.S. Government Printing Office.Google Scholar
U.S. SECURITIES AND EXCHANGE COMMISSION (1976) Annual Report. Washington, DC: U.S. Government Printing Office.Google Scholar
VIDMAR, Neil (1972) “Effects of Decision Alternatives on the Verdicts and Social Perceptions of Simulated Jurors,” 22 Journal of Personality and Social Psychology 211.Google Scholar
WHEELER, Stanton and Mitchell, ROTHMAN (1982) “The Organization as Weapon in White-Collar Crime,” 80 Michigan Law Review 1403.Google Scholar
WHEELER, Stanton, David, WEISBURD and Nancy, BODE (1982) “Sentencing the White-Collar Offender: Rhetoric and Reality,” 47 American Sociological Review 641.Google Scholar