by russell mokhiber and robert weissman

Another form of justice

CORPORATE AND WHITE -collar crime have landed on the front pages of the nation's agenda-setting newspapers.

Late in May the New York Times ran a front-page article reporting that the last decade has seen "a marked increase in accounting and corporate infractions, fraud in health care, government procurement and bankruptcy."

Maybe. Maybe not. We don't know.

One reason we don't know is that while the federal government tracks street crime through the Federal Bureau of Investigation's yearly "Crime in the United States" report, it refuses to compile a similar report for corporate and white-collar crime.

It could just be that the press and prosecutors are finally noticing, in the wake of Enron and Andersen and Global Crossing, what has been true for most of this century: that corporate and white-collar crime inflict far more damage on society than all street crime combined.

And yet the nation's prison system is filled with street criminals. That's because we're tough on street criminals. Meanwhile, we engage in negotiations with corporate and white-collar criminals.

Should we level the playing field by putting more white-collar criminals in prison?

Maybe. Maybe not.

What about leveling the playing field by taking more seriously the idea of negotiating with both corporate and street criminals?

This is an idea touted by John Braithwaite, a professor at the Australian National University in Canberra who is considered to be one of the world's premier corporate and white-collar criminologists.

In his most recent work, Restorative Justice, Responsive Regulation (Oxford, 2002), Braithwaite comes down hard on retributive justice. It doesn't work for street crime. And, he says, it doesn't work well for white-collar crime.

Braithwaite argues that throwing people in prison because they deserve it is a failed criminal-justice policy. For all the wrong reasons, Braithwaite says, corporate-crime enforcement is restorative, while street-crime enforcement is retributive.

"Some of us began to wonder whether we were wrong to see our mission as making corporate crime enforcement more like street crime enforcement through tougher sanctions," Braithwaite writes. "Instead, we began to wonder whether street crime enforcement might be more effective if it were more like corporate criminal enforcement."

"Retributive justice," Braithwaite writes, "is the notion that you respond to hurt with more hurt. It often turns out not to be a sensible response, because you get into a vicious spiral of hurt begetting hurt.

Whereas restorative justice is an attempt to create the opposite dynamic of healing begetting healing."

So even in the case of the most egregious street crimes, bringing victims and perpetrators together, along with their family members and loved ones, is the more effective policy.

Structured conversations, overseen by a government authority and requiring a genuine showing of remorse by perpetrators, will often leave victims feeling more satisfied that justice has been done and criminals less likely to commit new crimes, he says.

A system of restorative justice, he cautions, should be backed up by systems of deterrent and incapacitative justice – locking criminals up where they can do no more harm – when it is apparent restorative approaches will fail.

Braithwaite says a restorative justice system would empty the prisons – except for recidivist white-collar or street criminals who threaten bodily harm or who obstinately refuse to abide by the law.

One thing is clear. For the sake of fairness, the playing field needs to be leveled.

Let's either apply retributive justice evenly – against white-collar and street criminals alike – or let's give restorative justice a try across the board.