There have been 13 deaths at Rikers Island this year already, while white-collar criminals rarely even get ankle bracelets as they await trial. This month, as the Chamber of Commerce amped up its campaign to stall legislation that would hold the Sackler family accountable for the deaths they caused and profited from by encouraging the over-prescribing of opioid drugs, a poor man in a wheelchair was killed by Covid. He’d been charged with gun possession and became the 13th Rikers’ death because he couldn’t afford $100,000 bail.
Two criminal justice systems, separate and unequal, means we don’t have justice. One criminal justice system is for the wealthy and well-connected, where prosecutors and judges hesitate, negotiate, and, if they even think about bringing criminal charges, are tempted to settle. The other is for poor Black, brown, and vulnerable communities where even before a trial you can be sent to a death trap like Rikers. In 2018, fewer than 40 people employed by major corporations got prison time for any federal white-collar crime, while nearly 20,000 people were federally sentenced for drug crimes. More people went to Rikers yesterday than were ever charged with causing the financial crisis.
What that means is that we need two kinds of reform: Along with ending mass incarceration, retooling prosecutorial practices and incentives, and reducing sentence length, we also need to dial up our white-collar prosecutions. The failure to stop theft, abuse, and suffering at the hands of criminals with spreadsheets and fancy systems of fraud is directly leading to impoverished communities and fewer resources for public investments. It’s also leading to a crisis for the rule of law.
When you think about it, the rule of law is a radical promise. It is the commitment to trying to ensure that whoever you are, and whoever you know, the same rules will apply; that the massive police power of the state will be used evenhandedly. The opposite of the rule of law is not arbitrary tyranny but treating people differently because of race, connections, money, and social class.
To achieve the rule of law, we need a single standard of justice for all. We’ve got to build a system where we treat a wealthy CEO charged with securities fraud, wage theft, or monopolization the same way we treat someone in Washington Heights charged with grand larceny.
These are not just two sides of the same coin; they are connected. Over-incarceration of poor communities and communities of color is fundamentally connected to under enforcement of elite economic crimes. For a long time, crimes like wage theft and workers compensation fraud were on the books, but weren’t treated as “real” crimes, deserving of the same level of anger. A shoplifter taking underwear from a Walmart gets armed police officers chasing him down, whereas an employer taking cash from his worker by paying less than they’re owed treats any fines as the cost of doing business. Worst of all, financial crimes at the highest level—the kind that crashed the economy in 2008—are still seen as too risky to even touch.
Death by spreadsheet is still death. The suffering caused by white-collar crime is enormous and imposes a significant financial cost on its victims—and society at large. When workers are unsafe because their employers intentionally break health and safety laws, they can get sick, become anxious and depressed; they can lose their ability to work, their ability to flourish, and even their lives. When big corporations intentionally push harmful or fraudulent products, the criminals may be sitting in a distant C-suite, watching the harm as if it’s on a video game, but they are still choosing to addict people, extracting value from them by pushing dangerous products.
Even something like antitrust, which nowadays may sound benign enough—why reach for handcuffs for a merger?—was originally understood to be an essentially criminal statute. As people once knew, monopolization is just a polite word for highway robbery. In fact, the growing monopolization of our society has itself undermined the rule of law, as government/regulators hesitate/s to enforce basic rules, knowing that doing so could lead to the collapse of an industry that is in the grip of a few companies.
There are reforms that New York could pass that will make it easier to enforce the law, but, frankly, if the will is there—if prosecutors start seeing white-collar criminals for what they are instead of as fellow members of the same elite—we already have the tools. A huge part of the change is in our habits and rules regarding the laws governing the powerful: tech and hospital CEOs who violate antitrust laws, billionaires who cheat on their taxes, real estate titans who use fraud to get rid of tenants.
This is already starting to change—but it needs to change faster, especially at the highest reaches of power. More and more attorneys general and district attorneys are bringing criminal charges for workplace crimes. President Biden’s Department of Justice has committed to putting more resources into white-collar crimes. The biggest change needs to be cultural. When we let elites off with fines and a scolding, we tell them—and everyone watching—that as long as you can hire a white-shoe law firm, the law doesn’t really apply. We undermine trust in government and in democracy. Yes, these cases are hard to prosecute and hard to investigate, and they require more resources. But our legal system should be based on what is right, not just what is easy.
