White-Collar Felon Registries, Hester Prynne and The Drive-By Truckers

No white-collar recidivism here.

No white-collar recidivism here.

Although one must admire the historicist sensibilities of a state legislature that just reinstated the firing squad  as a methodology for execution, the Utah legislature’s passage of a bill to create a white-collar crime registry modeled on sex offender registries is unwise where it is not silly.

As a New York Times article notes:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society.

Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

What are the issues here?
Lillian Gish (1893 - 1993) as Hester Prynne, white-collar felon.

Lillian Gish (1893 – 1993) as Hester Prynne, white-collar felon.

First, a white-collar registry would be “scarlet-lettering” without an offsetting benefit.  Politically satisfying, perhaps, but it is a “pitchfork” approach that upends proportionality and other counterweights that prevent a criminal justice system from turning into an inquisitorial system.  (We have written about pitchfork mentalities before: Stalking Horses, Pitchfork Crowds, Narrow Neckties, Mr. Rogers’s Slippers and Indicted Employees: 6 Steps To Dodge Being Deweyed and  Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression).

On the subject of The Scarlet Letter, consider Hawthorne and the core meaning of the story, which is about confession and redemption rather than legalism’s unforgetting (and unforgiving) recollection of sin.
With regard to “unforgetting,” a registry is  the inverse of the “right to be forgotten” movement, as represented by a recent Eurpean Union case.  Consider this from a Mockingbird article, Divine Memory and The Right to Be Forgotten:
In Hawthorne’s Scarlet Letter, protagonist adulterer Hester Prynne is saddled with a big red letter “A” to be worn on her chest at all times. The letter acts as a shaming reminder to the greater community to keep their sexuality in line. While Hawthorne goes on to make Hester a dignified example of the power of confession, top hits of Google searches aren’t unlike a big letter “a” for many whose mistakes just won’t go away. Identity is at the core of both stories . . . .  Should a foreclosure 16 years ago be part of the plaintiff’s identity? Who gets to control the ever-important first impression- the politician on his rebound or the Google search?
I've got my eye on you.

I’ve got my eye on you.

 

Second, a registry is most justified when there is a substantial body of evidence that offenders are very likely to recidivate; where the victim-population is peculiarly and legally unable to protect itself; and where the harm is not meaningfully compensable.  Sexual depredation of children satisfies these criteria, and thus we see widespread legal and cultural acceptance of sex-offender registries.

 

Although the data is mixed, white-collar felons, like nonviolent offenders in general, have a relatively low rate of recidivism.  Further, white-collar offenders commit money-crimes, and money-remedies are available if the offender is solvent (admittedly, sometimes a big “if”).

He's made his list, he's checked it twice and now it's on the internet.

He’s made his list, he’s checked it twice and now it’s on the internet.

Third, are citizens of Utah, like minors, peculiarly unable to be clothed with legal rights and responsibilities?  Paternalism may have its place, but here? The legislative assumption seems to be that Utahans in general and Mormons in particular are so naive or insular that they need to be protected from themselves.  Or, in the words of a Guardian (UK) article: Utah creates white-collar crime registry to protect ‘trusting’ Mormon population.

What next? Hasidic Jews? Southern Baptists? Episcopalians?  (The last denomination is unfair. I have no data on the subject, but anecdotal evidence suggests that many of the most temporarily successful white-collar offenders are, in fact, Episcopalians).
Fourth, the Utah Attorney General claims that white-collar crime is “epidemic” in Utah.  Again, from the Times:
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
A handful of large dollar loss offenses do not an “epidemic” make.  According to the United States Sentencing Commission, fraud offenses account for only 5.2% of federal inmates — less than firearms offenses (18%) or pornography and prostitution (5.7%), and a figure dwarfed by drug offenses (51%).  The Bernie Madoffs of the world grab eye-popping dollar headlines, but the median loss in fraud offenses committed by offenders in the federal prison population is $696,295 — not a small sum, but a figure which is likely driven misleadingly high by Madoff-like numbers.  Even if it there were an epidemic, the solution is carefully crafted, clear laws that criminalize wrongful activities in a manner consistent with commonly accepted norms in Anglo American criminal law history.

A challenge getting to the keyboard.

A challenge getting to the keyboard.

Fifth, there is no reason to expect that the registry will provide any particular deterrence.  If the prospect of prison, financial ruin, loss of reputation, bankruptcy, dissolution of family, loss of law or CPA licenses, and debarment from federal contracting does not dissuade a bad actor, being put on a website will have little effect.

 

 

 

 

Law should be just, or it is not law, but on occasion it should be tempered with mercy, as the Drive-By Truckers point out in Mercy Buckets:

 


The Drinking Reader, Our Cocktails Magazine, Tom Jones and Other Weekend Matters

Cocktails on Flipboard.

Cocktails on Flipboard.

White Collar Wire supports cocktails.

As part of that effort, I have a magazine on Flipboard called (helpfully) “Cocktails.”  Follow here, read on and use good ice.

Two items we focus on — books and cocktails — come together in How to Build a Solid Drinking Library, by New York Times writer (and bartender) Rosie Schaap:

Are there places I like as much as great bars? Yes: great bookshops. And if I had to pick a favorite in the latter category, it’s Dog Ears Book Barn in the little town of Hoosick, N.Y. Conveniently, it’s just a little ways down Route 7 from the Man of Kent, one of America’s best bars. A couple of hours spent digging through Dog Ears for treasure, then bringing those books to the Man of Kent and perusing them over a few pints for a few more hours? That’s what I call a perfect day.

Read the entire piece here.

All you need (courtesy of Gear Patrol).

All you need (courtesy of Gear Patrol).

On the subject of cocktails, absinthe has made a comeback, as shown in Gear Patrol‘s piece on How to Drink Absinthe Like a Gentleman.

Absinthe’s history mirrors the way it’s meant to be prepared: a mix of the misunderstood and the legitimately unusual. For most of its existence, the spirit has been slandered, ostracized and, in rarer cases, revered. It’s been dragged across borders, masqueraded as other liquors, aspersed with hallucination claims and — since its ban was lifted in America in 2007 — the spirit has been secretly embracing it all.

“There’s a tradition. There’s a lure to the preparation of absinthe”, says Will Elliot, a bartender at Brooklyn’s Maison Premiere, an oyster and cocktail den with the allure of a New Orleans haunt. Absinthe, at 68 percent alcohol, is a compacted spirit. Once diluted with water, the essential oils and flavors loosen to reveal the drink’s nuances. Preparing an absinthe drink involves combining botanicals, flavors and aromatic elements, Elliot says. “It’s not the sort of spirit that you just toss back.” As for lighting it on fire, which often is brought up in discussions on how absinthe’s served, “You wouldn’t…that’s really damaging the alcohol”, Elliot says. He got behind the bar to debunk some myths and walk us through two traditional absinthe drinks — a drip and a frappe — and a new twist on an old cocktail.

The Martinez (via The Cabinet Rooms)

The Martinez (via The Cabinet Rooms)

From the The Cabinet Rooms blog, a recipe for the Martinez, a precursor to the modern martini:

Continuing our exploration into the world of gin, we’ve been perusing classic gin-based cocktails this week. One dating back to the 1880’s is the Martinez; a smooth and refreshing drink, packed full of herbal aromatics. Usually made by mixing gin, vermouth and bitters with either maraschino liqueur or orange curaçao, this drink is a great alternative to the Martini. We love the combination of the gin’s botanicals with the fruitier notes of the vermouth and sweetness of the maraschino. Here we’ve used Burleigh’s London Dry and garnished with a black cherry, soaked in a rich Kirsch syrup, for a touch of added luxury.

A frosty one.

A frosty one.

From the Garden & Gun blog, a video recipe  for a modern mint julep.

From The Telegraph, a review of fancy bitters:

“You’re writing about bitters – great beers!” my husband said. But no, with respect to him and Britain’s brewers, I’m going to talk about something far more chic and high fashion. And bitters – those little, apothecary-like bottles of intensely aromatic botanical tinctures – are about as on-trend as you can get right now.

This follows on from the premium gin craze, as what could be better than bitters to dash in your G&T? Angostura, the brand that most of us know, is good stuff, but do branch out and try other, distinctive smaller-batch bitters, such as the extraordinary range made by The Bitter Truth.

Finally, a clip of Tom Jones singing “She’s A Lady,” just because we can:


White-Collar Crime, DPAs and Repeat Business

Trying to keep your balance in a DPA.

Trying to keep your balance in a DPA.

The phenomenon of extending corporate deferred-prosecution agreements (or “DPAs”) continues, as here with medical device maker Biomet, and controversy inevitably ensues:

Life was supposed to return to normal for Biomet, the giant medical devices manufacturer accused of foreign bribery, when its federal probation expired next week. But on Tuesday, Biomet disclosed that prosecutors would extend its probation another year as they investigate new evidence of wrongdoing at the company, the Justice Department’s latest attempt to stem a widening pattern of corporate recidivism.

The Department of Justice, however, has been clear recently:

“Make no mistake: The criminal division will not hesitate to tear up a D.P.A. or N.P.A. and file criminal charges where such action is appropriate and proportional to the breach,” Leslie R. Caldwell, head of the Justice Department’s criminal division, said in a speech on Monday. “Just like an individual on probation faces a range of potential consequences for a violation, so, too, does a bank that is subject to a D.P.A.”

In the speech, Ms. Caldwell outlined her policy on repeat offenders in significant new detail. Noting that “we have a range of tools at our disposal,” she said the Justice Department could extend the term of a deferred-prosecution agreement while prosecutors investigate “allegations of new criminal conduct.” And when a breach has occurred, she said, “we can impose an additional monetary penalty” and “most significantly, we can pursue charges based on the conduct covered by the agreement itself — the very conduct that the bank had tried to resolve.”

We have written about DPAs and non-prosecution agreements (“NPAs”) here.

Builds wrist strength.

Builds wrist strength.

Note the reference to “a widening pattern of corporate recidivism.”  There may be such a pattern, and there are startling cases from  time to time, but hard data is scarce.  Anecdotally, we see few repeat white-collar customers on a significant scale, and for not unexpected reasons — cost, reputation and damage to stock price being the most common.


Liberty and Edward Thomas

Lady Liberty.

Lady Liberty.

“Liberty” is one of the foundational concepts of the American enterprise, individual liberty in particular.

To the white-collar practitioner (and client), the concept of liberty takes on a special urgency.

Edward Thomas

Edward Thomas

Edward Thomas was born in Lambeth, London, on March 3, 1878. His books include The Woodland Life (1896), In Pursuit of Spring (1914), and Last Poems (1918). Thomas died in World War I at the battle of Arras on April 9, 1917.  “Liberty” was published in Thomas’s book Poems (H. Holt & company, 1917).

Liberty

by Edward Thomas (1878-1917)

The last light has gone out of the world, except
This moonlight lying on the grass like frost
Beyond the brink of the tall elm’s shadow.
It is as if everything else had slept
Many an age, unforgotten and lost
The men that were, the things done, long ago,
All I have thought; and but the moon and I
Live yet and here stand idle over the grave
Where all is buried. Both have liberty
To dream what we could do if we were free
To do some thing we had desired long,
The moon and I. There’s none less free than who
Does nothing and has nothing else to do,
Being free only for what is not to his mind,
And nothing is to his mind. If every hour
Like this one passing that I have spent among
The wiser others when I have forgot
To wonder whether I was free or not,
Were piled before me, and not lost behind,
And I could take and carry them away
I should be rich; or if I had the power
To wipe out every one and not again
Regret, I should be rich to be so poor.
And yet I still am half in love with pain,
With what is imperfect, with both tears and mirth,
With things that have an end, with life and earth,
And this moon that leaves me dark within the door.