- Title
- Skilling's martyrdom in the case for criminalization without incarceration
- Creator
- Gopalan, Sandeep
- Relation
- University of San Francisco Law Review Vol. 44, Issue 3, p. 459-504
- Relation
- http://lawblog.usfca.edu/lawreview/volume-44
- Publisher
- University of San Francisco
- Resource Type
- journal article
- Date
- 2010
- Description
- The focus on white-collar crime has increased following the corporate scandals of the late 1990s, and has been buttressed by the popular perception that white-collar criminals are not punished enough. Despite the long sentences alleged wrongdoers like Jeff Skilling of Enron, Bernie Ebbers of Worldcom, and Joseph Nacchio of Qwest have received, popular opinion remains that the law is too lenient on this class of offenders. The retributive impulse of the mob's baying for blood after Enron's collapse was not sated by the untimely death of Ken Lay shortly after his conviction; they claimed that "justice had been cheated." This societal turn to vengeance seems to be at the root of the creeping criminalization of conduct that was traditionally dealt with by other areas of the law, as reflected in the fact that of the approximately 3000 crimes in the federal statute books, over 1200 were created since 1970. Virtually every case of new legislation aimed at behavior modification seems to entail shrill claims about the need for criminalization, upon the pretext that civil sanctions do not pack enough punch. The Sarbanes-Oxley Act of 2002 is just one example of this phenomenon, enhancing existing penalties and creating new criminal offenses in the wake of Enron's collapse. Creeping criminalization has serious ramifications: it undermines the coercive power of the criminal law, dilutes its expressive power, over-deters otherwise desirable business activities, conflates blameworthiness with imprisonment, creates incentives for prosecutors to abuse their powers, fuels an appetite for enhancing prison terms, and increases social costs. Most importantly, it punishes people for actions that are not even civil wrongs, let alone undertaken with the taint of moral wrongfulness.
- Subject
- corporate fiduciaries; white collar crimes; criminal liability; punishment in crime deterrence
- Identifier
- http://hdl.handle.net/1959.13/1058026
- Identifier
- uon:16312
- Identifier
- ISSN:00420018
- Language
- eng
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