Duke Law Professor Sam Buell On Business Crime and Punishment In America’s Corporate Age

Duke University Law Professor Samuel Buell is out with his first book — Capital Offenses: Business Crime and Punishment in America’s Corporate Age (Norton, 2016).


As a former federal prosecutor, Buell says he wants to help Americans understand that corporate crime prosecution is not black and white.

“One of the reasons why the public may be frustrated with white collar crime is because it is not a black and white affair,” Buell told Corporate Crime Reporter last week. “The stories we tell about white collar crime tend to be very moralistic and tend to have a black and white quality to them. And sometimes it is black and white. Bernard Madoff is a black and white story. And there are many others like that. But when you start looking at the law of white collar crime, I hope you develop an appreciation as to why it’s difficult to draw lines in this context between right and wrong — in ways that are less complicated when dealing with street crime, violent crime, drugs and immigration — where we have drawn some fairly bright lines.”

“I want people to understand that the lines in white collar crime are not bright lines. And the reason they are not bright is because we as a society are dealing with a segment of society that we are fundamentally ambivalent about. We celebrate aggressive capitalism. Our system is built around that. When it goes wrong and we don’t like the outcome, often we want to criminalize it. There is an ambivalence there that is going to cause the law to have trouble drawing lines.”

“That’s not a policy solution or prescription or — here’s how we fix things. That’s — let’s understand better what happens.”

“I’m also trying to get people to understand the limitations of what criminal law may be able to accomplish in this sphere. And this is not a new story. Many people have argued this.”

“We can’t expect criminal laws to solve all of our problems — particularly in the business realm. It’s important to have prosecutions. It’s important to have sanctions. It’s important to have credible fear of sanctions. But what we are dealing with in these big cases — BP, VW, GM, Enron, the banks — we are dealing with fundamental questions about how we are regulating industry and whether we are structuring industry in ways that are exposing us to too much risk, the wrong kind of risk. That’s a systems design question. Criminal law is not good at those questions.”

You write in your book that corporations generally prefer criminal prosecution to regulation. Do you prefer regulation to criminal prosecution?

“I’m a believer in what John Braithwaite laid out many years ago — the enforcement pyramid. The most severe sanction — the criminal sanction — is at the point of the pyramid. You have to have that. But at the foundation is regulation. Yes, regulation is more important than prosecution. But you have to have what William Douglas referred to as the well oiled shotgun behind the door. In any regulatory system, you have to send the message that the most severe form of sanction is available in case it is clearly called for and necessary.”

“But criminal prosecution is like the fire department coming in and putting out the fire. What you really want is — no fires. People think — if we have prosecutions there won’t be fires because people will be scared of the prosecutors. Managers will be more careful and we won’t have these crises.”

“We have to recognize that criminal prosecution is a limited tool. We also have to recognize that when we take up a particular problem case — whether it’s BP or GM or VW — that is an occasion for a serious conversation about whether we are properly regulating that particular industry.”

“And the conversation that goes — those evil managers — throw them in jail — that can be a distraction from the question — are we regulating these consumer products properly? Let’s take a deeper look at this.”

What about raw brute corporate power influencing the criminal justice system?

“Most of my readers will probably be coming at my book with the idea — corporations control Washington and criminal law is no different,” Buell said.

“I argue that criminal law is different. Prosecutors are not like FDA officials or Commerce Department officials who can be lobbied. It’s a different dynamic. That doesn’t mean that corporations don’t have influence in the process. They can afford very good lawyers and they can litigate more effectively, certainly more effectively than indigent defendants in street crime cases. But litigating more effectively is not the same thing as being able to pick up the phone and make something go away. That kind of thing, in my experience, just doesn’t go on in the criminal justice system.”

“Even if corporations had the ability to bring about an overhaul in the criminal law, to go to Congress and say — we don’t like the FCPA, we want to get rid of it. They are not doing that.

Why aren’t they doing that? Because it is not clear they will win that battle. But more importantly, they might say — that’s not the battle we want to fight. The better battle for them is the battle over regulation. Fighting the criminal law is going to be bad public relations for them and it will not have the same payoff as fighting regulation they have to deal with that day in and day out.”

“There is not a single example in the last 20 years of an organized corporate effort that resulted in the reduction of the scope of federal criminal law. It may be because they recognize that the occasional prosecution is far less costly than comprehensive regulatory reform. When there are prosecutions, industry says — we are against bad guys too. Sure, go get the bad guys. Just don’t break up the banks.”

[For the complete q/a transcript of the Interview with Samuel Buell, 30 Corporate Crime Reporter 33(12) August 29, 2016, print edition only.]

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