ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 454-463

CORPORATE CRIME, LAW, AND SOCIAL CONTROL by Sally S. Simpson. Cambridge University Press, 2002. 180 pp. Cloth $55.00. ISBN: 0-521-58083-8. Paper $21.00. ISBN 0-521-58933-9.

Reviewed by David T. Johnson, Department of Sociology, University of Hawaii.

This timely book addresses a timeless question: What is the capacity of the criminal law to prevent and control illegality (p. 4)? The book is timely because the illegality on which it focuses is CORPORATE CRIME, defined as "the conduct of a corporation, or of employees acting on behalf of a corporation, which is proscribed and punishable by law" (p. 6), and because the current crisis in American capitalism is mainly a matter of corporate crime. The flood of scandals in the United States--Enron, Arthur Anderson, WorldCom, Qwest, Tyco, Adelphia, Merrill Lynch, Lehman Brothers, KMPG, Global Crossing, Xerox, J P. Morgan Chase, Citigroup, AOL Time Warner, Harken, Halliburton, etc.--features executives who repeatedly have betrayed the marketplace and the law in favor of their own short-term self-interest. The WALL STREET JOURNAL says that the scope and scale of corporate transgressions "exceed anything the U. S. has witnessed since the years preceding the Great Depression."

The most popular response to these corporate crimes resembles the one-size-fits-all reaction to conventional crime that governments in the U. K. and U. S. A. have pushed for the last 30 years: more punishment (Coleman 2002: 231; Garland 2001). In July 2002, a Harris Poll found that 82 percent of Americans support "tough new laws" to reduce or prevent corporate fraud. President George W. Bush proposed doubling the severity of some fraud sanctions (from 5 years to 10), telling business leaders "We can't pass a law that says 'You will be honest' but "We can pass laws that say 'If you're not honest we'll get you.'" The Senate then voted 97-0 to pass a bill that called the President's ante and raised the penalty for fraud from 10 years to 25. A number of senators said privately that there are a "lot of things" they do not like about the bill but that they voted for it anyway because "nobody wants to get in front of that [get-tough] train." Richard Breeden, former chairman of the Securities and Exchange Commission (SEC), argues that "Criminal sanctions are essential when you're dealing with people in the income level of CEOs and [chief financial officers] of major companies. If somebody is making $105 million a year, for him to consent to an injunction from the SEC that he won't do it again doesn't create adequate deterrence. You've got to put him in jail." Even William Lerach, a plaintiff's lawyer feared and reviled by business for bringing hundreds of shareholder suits against Fortune 500 companies, believes "the most effective reform is sending executives to prison," not the class-action litigation that he undertakes (Greider 2002). Many scholars have boarded the punishment bandwagon as well. James Cox, for example, a professor of law at Duke University, says that, "We're not going to get the attention of corporate

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America until we hear the click of the jail door on the backsides of some of these executives who are manipulating the numbers." On July 29, President Bush promised to produce more of the requisite clicks. The next day he signed the corporate responsibility bill into law, praising it as "the most far-reaching reform of American business practice since the time of FDR" and promising that there would be "no more easy money for corporate criminals, just hard time." Attorney General John Ashcroft reinforced the message by declaring that "corporate executives are no better than common thieves when they betray their employees and steal from their investors."

If the core claim in Sally Simpson's book is true then all of these views are misguided, for the criminal sanction can do little to deter corporate crime and, perversely, it can even amplify deviance.

The focus of Simpson's book is also timeless, because jurists and scholars long have wondered what good the criminal sanction can do (Packer 1968) and because corporate power is likely to increase as societies become increasingly "asymmetric" (Beatty 2001). As James S. Coleman (1974) observed, there are natural persons and there are corporate persons and the interests and influence of the latter are becoming more and more dominant. In America alone, 22 corporations have market capitalizations that exceed the gross domestic product of Spain, and around the world 51 of the 100 largest economies are controlled by companies, not countries (Mitchell 2001). At least among criminologists there is an emerging consensus that corporate crime and violence inflict far more damage on society than all street crimes combined (Mokhiber and Weissman 1999; Coleman 2002; Stone 1975). A recent FBI report found that the combined costs of burglary
and robbery are around $4 billion per year. By comparison, W. Steve Albrecht, an accounting professor at Brigham Young University, estimates the annual
cost of white-collar fraud to be about $200 billion (Press 1996). Similarly, the General Accounting Office has estimated that the cost of the Savings and Loan bailout will exceed (in 1990 dollars) the cost of waging the Korean War by about 60 percent (Zimring and Hawkins 1993: 253). Since questions about corporate-crime control are among the most important and under-researched issues in all of socio-legal studies, this new book is welcome indeed.

Simpson begins by lamenting "the woeful lack of research on corporate deterrence" (p. ix), yet chapters one through six of her eight-chapter book are devoted to summarizing extant studies about: the criminalization of corporate crime in the post-Watergate era (chapter 1), the deterrent effects of criminal law for conventional and corporate crime (chapter 2), the reasons that criminal sanctions "fail to deter corporations and their managers from violating the law" (chapter 3), the capacity of civil law (chapter 4) and government regulations (chapter 5) to deter corporate crime, and the best alternative to criminalization--"cooperative models of corporate compliance" such as John Braithwaite's "pyramid of enforcement" (chapter 6).

Chapter 7 presents Simpson's own empirical test of two modes of controlling corporate misconduct: "criminalization versus cooperation." It is based on two "factorial surveys" (experimentally manipulated vignettes-in-surveys) administered to MBA students and business executives in 1993 and 1998. The vignettes describe four crime scenarios--price-fixing, sales fraud, bribery, and the violation of environmental standards--about which respondents were asked to assess
the

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depicted criminal behavior and legal responses to it and to state what their own "offending propensity" would be if they were placed in circumstances like those described in the scenarios. Chapter 8 concludes by stating that "corporate crime control strategies based solely in a deterrence framework are unlikely to work--especially those that emphasize severe punishments instead of more certain and modest ones" (p. 154). Criminalization approaches to corporate-crime control are therefore "bad science" and "bad policy" (p. 159).

This short work has many merits. Simpson's knowledge of the deterrence literature is comprehensive, and she consistently demonstrates a knack for succinctly summarizing research findings. Among other gems, her critique of standard assumptions about "managerial rationality" is concise, lucid, and constructive (p. 57). Several findings surprise and intrigue, particularly the discovery that "corporate offending is attractive sensually to potential offenders" (p. 151). In this respect, company managers resemble the shoplifters and "badass" robbers who enjoy the emotional rewards of offending (Katz 1988). More practically, Simpson's
four-part review of answers to the question "what works to deter corporate crime?" (chapters 3-6) will be a useful reference both for scholars just entering this field and for veteran researchers designing new studies. Her own survey approach to measuring why companies obey the law could (and should) be replicated in other corporate environments.

Although I agree with much of the analysis in this good book, I have five reservations. First, there seems to be an internal inconsistency between Simpson's assertion that "criminalization" fails to deter crime and the evidence presented in the text. Second, corporate crime has not been as highly "criminalized" as the author supposes. Third, some of Simpson's arguments are unhelpfully narrow. In particular, her focus on deterrence leaves out important and related questions about fairness, just deserts, symbolic politics, and law-making. Fourth, Simpson's own research suggests that corporate managers are more "criminally committed" than the author acknowledges. And fifth, there is a misfit between Simpson's broad definition of corporate crime and the narrow target of most criminal sanctions.

My first reservation concerns an inconsistency in Simpson's argument about what works to deter corporate crime. In chapter two she notes that the deterrence doctrine reemerged in the late 1960s, spawning two distinct types of research. OBJECTIVE DETERRENCE STUDIES use aggregate data to assess the relationship between actual punishments and levels of crime, while PERCEPTUAL DETERRENCE STUDIES assess how subjective judgments of punishment influence the criminality of individuals (p. 27). Unfortunately, little research of either kind has been conducted about corporate crime. Simpson reviews five objective studies and four perceptual ones before concluding that the evidence about corporate-crime deterrence is "equivocal" (p. 42) and fraught with "contradictory
findings" (p. 43). She ends chapter 2 by stating that "punitive policy recommendations based in a deterrence framework" must be called "premature" (p. 44).

This conclusion seems properly prudent; I take it to mean that the research record speaks so little and so uncertainly about the power of criminal law to deter

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corporate crime that one cannot tell how well it works. On the very next page (p. 45), however, Simpson changes course, by beginning chapter three with a question based on a far more confident premise: Why does the criminal law FAIL to deter corporations and their managers from violating the law? Chapter 2 does not demonstrate failure, but in the rest of the book the author writes as if it has (pp. 60, 98, 154, 158). This slip between (a) the recognition that one cannot discern from the data whether criminal sanctions deter and (b) the conviction that criminal law does not work is large and unexplained. More importantly, it casts doubt on
some of the major inferences made in chapters three through eight.

The misfit between evidence and assertion further suggests that "theological" thinking about crime control may be as big a problem in corporate criminology as it is in analyses of conventional crime (Walker 1994: 15). Some of Simpson's assertions bespeak the triumph of faith over facts (pp. 1, 4, 10, 16, 45, 98, 122, 145). Though her beliefs may be sound, it is impossible to tell from the text because the empirical evidence is too thin, complicated, and conflicted (pp. 35, 42, 66, 78,
86, 90, 93, 97, 103, 111, 115).

In the absence of a compelling research record that punishment fails to deter, it is easy to find justification for either pro- or anti-criminalization views. On the one hand, the criminal sanction has severely limited capacity to control street crime (Currie 1998). Since prosecutors face formidable problems of proof with many white-collar offenses, one could reasonably suppose that its power to deter corporate crime cannot be any better. On the other hand, since corporations are
fundamentally different than you and me-they have perpetual life, they can be in two or more places at once, they cannot be jailed, and so on-the conventional wisdom about street crime may need to be inverted with respect to corporate crime (Braithwaite and Geis 1989). In short, there is a great deal that nobody knows about what works to control corporate crime. The more vigorously Simpson pushes her claim that "criminal law is an ineffective and inefficient deterrent for corporate criminals" (p. 60), the more the ambiguous research record recedes into the background.

A more fundamental premise of this book also merits scrutiny. It is chapter one's supposition that corporate misconduct has been heavily "criminalized" in the years since Watergate. Simpson argues that today "there is substantial overlap between conventional and white-collar crime control" (p. 2), and she quotes approvingly another scholar's claim that "the U. S. government has been locked into a predominantly punitive strategy" of corporate-crime control (p. 158). These assertions are
basic to the book's argument because they form the target against which Simpson contends that "in most cases cooperative models work best with most
corporate offenders" (p. i). Although some scholars agree that cooperation works better than criminalization (Braithwaite 2001; Kagan 2001; Grabosky 1995), there is a twofold problem in Simpson's presentation. First, her review of "the facts of criminalization" is thin and unconvincing (p. 16). If evidence exists to substantiate her assertion that corporate conduct has been heavily criminalized, you will not find much of it in this book. The "if" that begins the last sentence is a big one. In their surveys of criminology students, for example, Ermann and Lundman (2002: 3) find that white-collar crime is not nearly as salient an issue as Simpson supposes (p. 10). When their

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students were asked to "list three crimes you think are serious, troublesome, and worth trying to do something about," only 2 percent of responses directed attention to corporate crimes.

The second defect in Simpson's "criminalization" claim is more subtle. Law has a direction in social space, and throughout human history "downward law" (law directed at the poor, powerless, and unconnected) has been stronger than "upward law" aimed at wealthy, powerful actors such as corporations (Black 1976). Though Simpson's assertion that the intensity of some upward law has increased seems to be correct (Coleman 2002: 226), this does not mean (as the author sometimes suggests) that law directed at corporations has become highly punitive. There is a basic issue of equity lurking in the background of many of Simpson's arguments and, unfortunately, it seldom comes out of the shadows long enough to allow careful inspection. Consider two facts among many that reflect the reality
of American punitiveness: at present, over one-third of young black men are in prison or jail or on probation or parole, and America spends more on its Drug War than it does on private health insurance. With "criminalization facts" like these as background, is it sensible to say that sanctions for corporate crime have become highly punitive?

Simpson's disengagement from the equity issue reflects a recurrent problem in this book: its narrowness. The text itself is brief--just 180 pages--and of course it cannot and should not have to say something about everything. As a review of research about criminal, civil, and regulatory approaches to corporate crime control, it is a solid piece of synthesis. However, the book's concern with the narrow deterrence question crowds out other important issues related to corporate crime. One is the question of fairness and desert. Is the gradient differential between downward and upward law not woefully out of wack in America? Simpson walks up to this question in a footnote (p. 45) but then bows in deference to the complexity of the issue and returns her attention to matters of deterrence. Similarly, even if one agrees with the author that the criminalization of corporate crime is "'bad science' and therefore 'bad policy,'" one wonders why she does not explore the significance of the fact that bad policy can be very good politics (Edelman 1977).

Some of Simpson's interpretations--of other studies and of her own--also are narrow (pp. 78, 92, 132, 145). Most notably, her conclusion that "corporate crime control strategies based solely in a deterrence framework are unlikely to work" (p. 154) attacks a straw man. Who would disagree that fear ALONE is not enough? Even America's new corporate responsibility law creates mechanisms of compliance that are not based in a deterrent framework. Here and elsewhere, it would have been instructive to hear Simpson speak more expansively about ambiguities in the data (as she does at page 43) and about the larger implications of the research she knows so well.

This book's focus on law-breaking also excludes questions about law-making that should be centrally important in a study about how to encourage corporate responsibility. Corporations largely define the laws under which they live (Mokhiber 2001). In the current corporate-crime wave, the biggest scandal of all is how much bad behavior is perfectly legal (Klinger and Sklar 2002). Chief executives routinely use legal but improper accounting methods to


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inflate reported earnings (Buffett 2002). In calculating pension costs, for example, companies are permitted to use assumptions about investment return rates that are wildly optimistic. Worse yet, almost all C.E.O.'s tell their shareholders the legal lie that stock options are cost-free. Many companies (such as Ingersoll-Rand) save hundreds of thousands of dollars in taxes per day by taking advantage of off-shore tax havens, leaving people like you and me to make up the difference (Mayer 2002). Law enforcement budgets are starved for resources. And so on, ad nauseam.

A big part of the law-making problem is executive and legislative cowardice. American politicians tolerate many disgusting corporate practices because (among other benefits) they receive 80 percent of their "campaign contributions" from business interests (the cost of winning a Congressional seat has quadrupled since 1982). In 1994, for example, Democratic Senator Joseph Lieberman led the business charge against the SEC's efforts to change stock-option rules. Arthur Levitt, who at the time was chairman of the SEC, says that he regrets his retreat on this issue more than any other move he made during his tenure as chairman. In 1996,
Congress passed the notoriously lax Telecommunications Act because companies such as WorldCom lobbied (and paid) for its passage. Six years later, WorldCom (with $107 billion in assets) became the biggest bankruptcy in American history. Nationwide, 60 percent of Fortune 500 companies are incorporated in Delaware, where the state legislature has adopted a laissez faire attitude toward the issuance of charters and the regulation of corporate behavior. Examples like these illustrate how Simpson's focus on law-breaking makes her argument unduly confined and constrained. If the core question is "why do corporations obey the law?" (p. i), then one obvious answer is that many obey because they do not need to disobey; the laws already reflect their interests. Another answer is that the
corporation's legal structure severely constrains managers' freedom to act responsibly (Mitchell 2001: 3). Unfortunately, these possibilities merit little mention in this book.

Simpson's own study of corporate crime also relies on a narrow range of evidence--mostly survey replies from MBA students--that cannot support her strong conclusions about the weak impact of punitive sanctions. The author acknowledges this when she recognizes that "offending intentions are not the same thing as actual behavior" (p. 160). Just pages earlier, however, she inferred from the surveys that "managers tend not to adjust [their] BEHAVIORS based on formal legal threats" (p. 151).

Simpson's survey research has two additional problems. First, the author argues that cooperative strategies of corporate crime control work better than criminalization approaches even though one of her own surveys partially contradicts the other, finding that "the structure of self-regulation"--one cornerstone of cooperative strategies--"did not appear to affect offending decisions" (p. 145). Here again, faith in cooperative models of corporate compliance seems to triumph over the ambiguous research record.

Second, Simpson believes the surveys show "few [respondents] were 'criminally committed'"--that is, "always willing to contemplate crime" (p. 122). The evidence, however, is that 15 percent of the students and executives in the first survey "might be classified as criminally committed" (p. 122), while 30 percent of

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respondents in the second reported a 30 to 90 percent chance of offending. Thus, somewhere between one in seven and one in three of her largely young, white, male, and well-educated respondents expressed what seems to me to be a significant propensity to commit corporate crime. If one asked a sample of young American men about their willingness (say) to sell crack or rob a bank, I doubt if the proportions would approach those found in Simpson's surveys. If this hunch is right, one must wonder about the validity of another of her core claims, that to control corporate crime "a policy of persuasion--based on the assumption that most managers and executives want to do right--is apt to succeed most of the time" (p. 158). Recent events and Simpson's own survey suggest that a different assumption may be equally valid: many managers want to do well more than they want to do right.

My final critique is conceptual. Corporate crime (like white-collar crime) is notoriously difficult to define, and Simpson's definition generates a logical strain between different parts of the text. In general, definitions of white-collar crime vary along two dimensions: focus and scope. The FOCUS can be on the qualities of the offense or the qualities of the offender, while SCOPE can be narrow so as to include only "true crimes" as defined by criminal statutes and convictions or broad
enough to cover illegalities (criminal, civil, and administrative) more generally (Johnson and Leo 1993). To come full circle, Simpson defines corporate crime as the "conduct of a corporation, or of employees acting on behalf of a corporation, which is proscribed and punishable by law" (p. 6). This decidedly broad-scope definition expresses three key ideas: that corporate crime can be committed by organizations and individuals; that the motivation for corporate offending is the pursuit of organizational ends, not individual ones; and (most importantly) that corporate crime includes violations of civil and administrative law in addition to criminal-law
breaking (p. 7).

There is a misfit between the breadth of Simpson's definition and the narrow target of most criminal sanctions. Criminal-law enforcement aims to identify, condemn, and sanction violations of CRIMINAL LAW, not of civil or administrative rules. To ask (as Simpson does) how well criminal-law enforcement deters "corporate crime" as she broadly defines it is to suppose that the target of criminal law is more expansive than it really is. Thus, when Simpson says that the criminal sanction "fails to deter corporations and their managers from violating the law" (p. 45), one does not even need to look at the evidence to formulate the following objection:
criminal sanctions do not attempt to deter "corporate crime" broadly construed, so the purported "failure" is at least partly an artifact of the dependent variable's broad definition. Simpson is not the first corporate-crime scholar to be bedeviled by definitional difficulties (nor will she be the last). John Braithwaite (1985: 5) has argued that "the only answers to 'why' questions that can be made safely [about white-collar and corporate crime] are also of no explanatory power," and he locates
the roots of the problem in the ambiguities and deficiencies of prevailing definitions. It is hardly Simpson's fault, but there has been little conceptual improvement in the intervening years. This problem, along with the even graver difficulty of "counting [crime] we cannot see" (Yeager 1993: 143), renders the study of corporate crime a "complex topic" indeed (p. ix).

In the end, this provocative book will stimulate readers to think about a wide range of issues in addition to the important


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question of deterrence that lies at its core. And timely it is. Though it is too early to tell, America could now be experiencing "the private sector's Watergate" (Rich 2002). If so, the current scandal wave may provide an opportunity to dethrone the free-market fundamentalism that has eviscerated corporate regulation over the last twenty years (Kuttner 2002; Phillips 2002; Pontell and Calavita 1993). On the other hand, corporate crime may be unable to generate public opinion of the kind that created and sustained the "anti-corruption project" which followed Richard Nixon's removal from office (Anechiarico and Jacobs 1996). Many wonder "where is the outrage?," and Ralph Nader attributes the public's tepid reaction to the complexity of scams and scandals and to the difficulty of identifying with the rich people who perpetuate white-collar frauds (Wallis 2002). Whatever the case, if Simpson's main claims are correct--if "getting tougher" is bound to fail as a means of controlling corporate crime and if "cooperative models" of control work best -- then America is barking up exactly the wrong tree. It would not be the first time.

I have argued that Simpson may be mistaken--the evidence is too thin to say either way--and that even if she is right there are other considerations besides deterrence that could make a more punitive approach to corporate crime eminently appealing. Politically (and cynically), bad policy can be good politics. And jurisprudentially, there are many occasions when desert trumps deterrence--and should. At a time when American law is fermenting in a stew of corporate corruption, one may read Simpson's book as a cautionary tale not to proceed down the same punitive path that America has taken towards conventional crime. The corporate scandals are themselves a cautionary tale about the hypocrisy of lecturing other nations-as America's federal government did during the financial
crisis in Asia-on the evils of crony capitalism (Sanger 2002).

Finally, while I share Simpson's skepticism about the capacity of the criminal sanction to deter corporate crime, I do not care if (to pick a crook) former Adelphia Communications CEO John Rigas spends the rest of his already long life in prison for using the company he founded as his own personal piggy bank--even if a severe sentence has little or no deterrent effect. Deterrence is important but desert matters too. The danger, of course, is that get-tough acts will placate the public, deflect criticism of our corporation-dominated democracy, and avert broader changes to the nation's corporate laws (Labaton 2002). If I part ways with Simpson in deciding how broadly to frame the question and in assessing how clearly the evidence speaks to it, I join her in urging other researchers to explore this understudied field. My own hunch is that detailed case studies will yield more meaningful results than will the statistical analysis of aggregate data.

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Black, Donald. 1976. THE BEHAVIOR OF LAW. New York: Academic Press.

Braithwaite, John. 2002. RESTORATIVE JUSTICE AND RESPONSIVE

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Mokhiber, Russell, and Robert Weissman. 1999. CORPORATE PREDATORS: THE HUNT FOR MEGA-PROFITS AND THE ATTACK ON DEMOCRACY. Common Courage Press.

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ORGANIZATIONS. The University of Chicago Press.

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Copyright 2002 by the author, David T. Johnson.