Don’t count on the DOJ going after white-collar crime

DOJ recently announced a tougher game plan for prosecuting corporate crimes, including pushing companies to claw back compensation from executives involved in bribery and fraud. 

Now while this policy overhaul sounds great, I doubt it’s going to be effective in practice given how our society is structured to uplift those who are more likely to be white-collar offenders. 

All said, this new proclaim tough stance on corporate crime will likely just produce and uphold the existing inequities in our criminal justice system. 

Let’s look at DOJ policy overhaul. The announced policy change? While it was announced differently than usual, it was made by way of an extremely comprehensive memorandum issued by Deputy Attorney General Lisa Monaco, addressing new strategies by which the Justice Department will prosecute companies that break the law. 

For example, in order for companies to get cooperation credits from prosecutors, they now need to turn over evidence of wrongdoing by executives much faster than they have in the past. 

The memo also puts restrictions on using deferred prosecution agreements, requiring prosecutors to seek approval from the Deputy Attorney General’s office before entering such settlements. 

Also, the memo pushes companies to create clawback policies that would allow the organization to force executives to return compensation in the event that they engaged in misconduct. 

On the surface, these changes sound great as it concerns tackling white-collar crime. But when you scratch beneath the surface, for example, clawing back executive pay has been a tool in the government’s arsenal for nearly two decades now. 

In 2003, a law was passed that allowed the SEC to force a public company’s CEO or CFO to return a year’s worth of incentive pay if there was misconduct. Add to that, many public companies already had policies on the books allowing them to recoup executive pay because shareholders want to see accountability. 

So either DOJ is not really doing anything here with clawbacks, or it’s planning to do more clawing back. I don’t know the answer to that, but I’m not here to give the Biden administration any points, until it’s clear that they plan on doing something different, as it concerns prosecuting corporate crimes. Because I don’t need any more smoke and mirrors.

The reality is that corporate crime isn’t prosecuted enough in our society, and the consequences, they don’t sufficiently deter. 

But it’s not for lack of resources in terms of prosecution or consequences. Our nation has more law enforcement agents than it does educators. 

Simply put, white-collar crime isn’t prosecuted enough, because doing so would run counter to three primary social constructs in our society. Think about it. 

From the day our nation was created, we’ve uplifted three things consistently:  wealth, men and whiteness. 

In 1776 and long thereafter, you had to have all three if you wanted to be recognized as a human being. 

Well, things are a bit different today. Yes, one thing remains. Our society still uplifts wealth, men and whiteness. And those three social constructs are a feature of white-collar crime. 

Think about it, the offenses, they’re all about the pursuit of wealth. They’re also overwhelmingly committed by men, 75% of corporate offenders and white-collar crimes are overwhelmingly committed by white people, some 85%. 

Why would our society go hard and the pain at stopping these offenses and punishing these offenders, when doing so would undermine what society prizes: wealth, men and whiteness. 

It would sure seem counterintuitive to those charged with policing, prosecuting and sentencing white-collar criminals, as they too are overwhelmingly white men living well above the poverty line. 

Our society simply is not invested in deconstructing these social constructs, let alone even addressing them, even if those white-collar offenses gave us earth shattering setbacks such as the 2008 subprime mortgage crisis that collapsed our economy and contributed to a global financial breakdown. 

You’d really like to think that police would aggressively investigate, prosecutors would ardently prosecute and judges would harshly punish such individuals whose greed caused incredible suffering worldwide. 

But no, that’s why I don’t foresee these purported new Biden policies necessarily doing anything differently when our society is still here to serve and protect wealth, men and whiteness. So until that changes, any purported changes in our system will barely make a dent.