No More Learning

"Often," Kennedy related, "we found that corrupt deals involving management were handled through attorneys who played the role of 'middleman,' or, as we came to think of them, 'legal fixers' or 'legal prostitutes. ' More often it was the labor relations consultant who played the 'middleman. '" 7
Kennedy reeled off a list of names of offending companies that reads like a miniature Social Register of big business. "Although I thought I had become case-hardened," Kennedy remarked, "I discovered I still was not shockproof when I studied the results of our investigation of the A. & P. . . " 8
The thesis that the underworld is a direct bridge into new propertied wealth for latecoming frontiersmen is laid down flatly by Professor Daniel Bell, chairman of the department of sociology of Columbia University. 9
"The jungle quality of the American business community, particularly at the turn of the century, was reflected in the mode of 'business' practiced by the coarse gangster elements, most of them from new immigrant families, who were 'getting ahead' just as Horatio Alger had urged. 10
"For crime, in the language of the sociologists, has a 'functional' role in society, and the urban rackets--the illicit activity organized for continuing profit, rather than individual illegal acts--is one of the queer ladders of social mobility in American life. Indeed, it is not too much to say that the whole question of organized crime in America cannot be understood unless one appreciates (1) the distinctive role of organized gambling as a function of a mass-consumption economy; (2) the specific role of various immigrant groups as they, one after another, became involved in marginal business and crime; and (3) the relation of crime to the changing character of the urban political machines. " 11
Crime, in other words, was the road taken by many immigrants, imbued with the Horatio Alger ideal of 100 per cent Americanism to become property holders and escape the repressive wage yoke imposed upon them by foresightedly frugal Anglo- Saxon corporations.
As business became more organized so did racketeering and gambling, until in the 1920's and 1930's it had become "industrial racketeering" through the medium of labor disputes, a fertile field. 12
Leading entrepreneurs here were Arnold Rothstein (shot after a high stakes card game), Louis Lepke Buchalter (executed in Sing Sing), Gurrah Shapiro, Dutch Schultz (assassinated), Jack "Legs" Diamond (assassinated) and Lucky Luciano (deported). Buchalter and Shapiro, as Professor Bell notes, in New York in the 1930's dominated sections of the clothing industries, house painting, fur dressing, flour trucking, etc. "In a highly chaotic and cutthroat industry such as clothing, the racketeer, paradoxically,
played a stabilizing role by regulating competition and fixing prices. When the NRA
came in and assumed this function, the businessman found that what had once been a
quasi-economic service was now pure extortion, and he began to demand police action. " 13
Seeking other worlds to conquer, says Professor Bell, the criminal racketeer shifted his emphasis from production to consumption, mainly gambling, without wholly yielding his interest in the productive side--as his deep involvement in labor racketeering in the 1950's and 1960's attests.
The Kefauver investigation revealed the tentacles of the gambling and vice syndicates; the McClellan investigation disclosed the seamy labor racketeers in full bloom. The latter performed the economic function of keeping labor costs down for the owners (a function performed by the political police in Soviet Russia). The gambling entrepreneurs performed the political-economic function of helping finance surreptitiously the major local political organizations--"machines" to critics--in Boston, Providence, New York, Philadelphia, Pittsburgh, Buffalo, Cleveland, Detroit, Chicago, St. Louis, Kansas City and other large urban areas.
Properly rejecting the Kefauver Committee's idea that a Mafia rules the underworld, Professor Bell points out that the committee failed to understand "(1) the rise of the American Italian community, as part of the inevitable process of ethnic succession, to positions of importance in politics, a process that has been occurring independently but also simultaneously in most cities with large Italian constituencies--New York, Chicago, Kansas City, Los Angeles; (2) the fact that there are individual Italians who play prominent, often leading roles today in gambling and the mobs; and (3) the fact that Italian gamblers and mobsters often possessed 'status' within the Italian community itself and a 'pull' in city politics. " 14
The road of crime, in other words, was taken by some latecoming immigrants trying to become property owners: Italians, East European Jews in the garment trades and Irish. 15 The urban political machines levied on all of these a heavy tariff. 16
In the process many of these men became "legitimate" property holders--'legitimate" here meaning that a court will uphold one's property claim. "Many of the top 'crime' figures" (I don't know why Professor Bell puts crime' in quotation marks, since they were court-certified criminals--F. L. ) now derived their income from "legitimate investments (real estate in the case of Costello, motor haulage and auto dealer franchises [Ford] in the case of Adonis) or from such quasi-legitimate but socially respectable sources as gambling casinos. " 17
One arrives, in short, at the big shots of the underworld, their names paraded anew in the Kefauver and McClellan investigations, and including such "labor leaders" as Jimmy Hoffa, Dave Beek and their henchmen--topsy-turvy Robin Hoods who gleefully robbed the poor for the benefit of the rich. These are men who, it is widely asserted, have traveled the latest highroad to wealth and secretly own large shares in the largest corporations. They have indeed the requisite qualities of ruthlessness and unscrupulousness but lack finesse.
Without harrowing the reader with details of the lengths to which I have gone to verify this notion of the criminal underworld as the source of great new wealth, let me categorically say this: There is nothing to it. While it is no doubt true that people like Costello have accumulated a nest egg of dimensions that might be envied by the common man I doubt that it is very great in the terms under discussion. If Costello or any other underworld character as of 1965 had a net worth of more than $5 million it would be surprising. No available evidence shows great underworld wealth unless Wall Street is located in the underworld.
Senator Kefauver cites incomes of various gambling groups taken from income-tax returns, which the underworld dislikes falsifying since Capone and others were caught at it and jailed for long terms, but though some of these figures are impressive, even if understated, it is only in a small way. They seem in the category of the marginal speculative businessmen scanned toward the end of the previous chapter, at best.
The reason for this low pecuniary estate is simple. The underworld in its public operations--gambling, prostitution, other variants of vice (as distinct from secret operations such as dope peddling)--is subject to "the split. " It must share its receipts (Kefauver estimated the gambling turnover alone at $20 billion a year) with local politicos, and the police from the beat patrolman up to the precinct captain.
This necessity diminishes the net return to the operators who, themselves a group, must also split. I should imagine the net return on total "sales" to be a good deal less than I per cent. On $20 billion (a figure pulled from the air) I per cent is $200 million, and even $200 million is far more than is likely to reach underworld coffers. For in addition to payoffs to winners, the gamblers must make heavy payouts for judicial fixes and lawyers. They must constantly yield tribute to hijackers. And when the residue is split among hundreds of operators there isn't much left for each. The "take" in prostitution is less and subject to a bigger overhead.
Someone who was known to be "on the take" for many years was Mayor Frank Hague of Jersey City, long a power in national councils of the Democratic Party (he might just as well have been a Republican). For Hague the revenue from gambling was steady. As a formal Catholic he frowned on prostitution. At his death he left an estate valued at $5 million. 18 If Hague, starting as a poor youth and never leaving the receiving end, could do no better than that, what must the so-called syndicate heads have made? Even if we allow that Hague spent $5 million additional in high living, his receipts would not have been more than $10 million for a very large, enduring and central gambling-political operation. While a goodly sum, this is not really "big" money. And Hague was not himself a gangster.
According to the newspapers, some criminal--usually Italian, Irish or Jewish-- establishes an organization. Then he shops about for "political protection" and manages to seduce some respectable churchgoing American official with a charming wife and children and a dog, cat and canary. A really decent chap, you know, until sweet-talked and bribed by an agent of the Mafia.
What actually almost always happens is that an established group in business and/or politics, having decided what the prospects are, looks about for a strong-arm man. If he can't be found locally he is imported, as Costello was imported into New Orleans to run slot machines, as Johnny Torrio and Capone, Brooklyn men, were imported into Chicago to dominate vice in general and as Harry Bennett was brought to Detroit by Henry Ford.
Something to notice about nearly all the underworld figures in their public appearances is that they are unsure of themselves. In fact, if they didn't have sponsorship they wouldn't have the assurance to set up extensive public operations. The newspapers require one to believe, for example, that the Anastasia brothers jumped ship and then proceeded autonomously to establish themselves on American soil as general strong-arm men and assassins. If one will only notice one's own uncertainty in a strange city (much less a strange country with a strange language) one will see how unlikely it is that lower-class people who don't know the language would take to large-scale lawbreaking in a strange land. But--if someone in authority convinced them it was all right to break the law, that they would be protected and paid, and if he was able to prove this on numerous touch-and-go occasions--one would produce the pattern of sullen,
defiant, wordless behavior of lower-class thugs at the bar with which the public is familiar.
The core of the Chicago prohibition mobsters, now world famous, was originally recruited by Chicago newspaper publishers who were engaged in literal gun battles for newsstand position--the "Circulation War. " All of the gunplay of the 1920's had a long dress rehearsal before World War I in the newspaper war. The participants learned through the Chicago newspaper attorneys how "the fix" worked and, later under political protection, they functioned the same way in the prohibition gangland wars. 19
Newspapers also purvey the fiction that once an operation has begun another independent comes along and tries to "muscle in," and then gang warfare breaks out. This is seldom true, although some independents (perhaps misled by reading the newspapers) have lent color to the theory, to their own undoing.
Most cases of urban gang warfare in the United States, apart from juvenile gangs, are expressions of factions in the local political party structure. Local branches of the two major parties or factions thereof extend protection to different strong-arm men, in gambling, prostitution, bootlegging, "protecting" small businessmen, and similar enterprises. Out in the field the cohorts of one gang infringe on the supposed territory of another, each catering to the hoi polloi. Formally outside the law, there is no way out for them except to fight or retreat. In some cases, no doubt, there have been retreats. In the known cases, violence has been the arbitrator.
The strong-arm men occasionally trip over the law (though there has not been a single conviction other than for the murder of a newspaperman for hundreds of gang murders in Chicago since World War 1), but rarely are their political protectors laid by the heels. One exception was James J. Hines, Tammany district leader and the political connection for the Dutch Schultz gang, who was convicted and sent to jail in the late 1930's by Thomas E. Dewey, later governor of New York and twice the Republican candidate for president. Somewhat later James J. Moran, fire commissioner under Mayor William O'Dwyer, was imprisoned for simple extortion as a result of disclosures before the Kefauver Committee. O'Dwyer himself stood clear.
But political protectors usually stand apart from gang affrays and may or may not come to terms among themselves. If they don't, as in Chicago in the 1920's, the various gangs--Gennas, Capones, Morans, O'Bannions, O'Donnells et al. -- fight a war of extermination. Capone swept the field, in part through greater cunning, in part because he introduced the machine-gun into his operations, a technological advance with devastating results. (Capone was a machine-gunner in World War I. )
Kefauver named a number of the Republican and Democratic Illinois legislative connections of Capone's successors. 20 The list could be greatly extended.
Sometimes outsiders do "muscle in. " One such was Vincent "Mad Dog" Coll in the 1930's, who preyed on various "banks" and "drops" of the rackets in New York City and is reported to have kidnapped for ransom some leading mobsters. Coil was abruptly shot to death in a telephone booth.
On rare occasions, a member of the underworld approaches officials with a view to buying political protection. A danger in doing this, shown in a case Kefauver cites, is that the official may be untouchable and may successfully turn and prosecute his tempter. For attempted bribery is, odd as it may seem, illegal.
But in these operations, the strong-arm men-agents of political parties or business groups--are the low men on the totem pole rather than the swashbuckling chiefs depicted by the newspapers. For it is they who are investigated, put on trial, pilloried in newspapers, sometimes jailed or executed, and murdered. It hardly seems a desirable
way to make a living. Their ulcer rate must be high. Even Frank Costello, referred to as "The Prime Minister of the Underworld" and in the 1940's a modest Warwick in elevating chosen men to local office, has been shot, narrowly escaping with his life. Most of the men summoned before Kefauver showed either physical scars or the ravages of tension and dissipation. None, despite possession of massive houses, swimming pools and cars, is really a winner. In their public appearances, they look congenitally unhappy. One pities their wives and children. A hard life, all in all, in the great American quest for property.
Crime: The Highroad to Wealth
Either sound instinct or a certain knowledge led Kefauver, Kennedy, and Bell to link notorious underworld figures with the business world. For crime is an historically established highroad to American fortune-building, as was first detailed by Gustavus Myers in The History of the Great American Fortunes and later by Matthew Josephson in The Robber Barons. If earlier men came into the upper propertied class by means of violent crime, it would seem that later criminal practitioners might be heading toward the same dubious salvation. So assiduously and unscrupulously did the earlier fortune- builders work that one might suppose they believed that in attaining wealth they were attaining eternal life.
Honore? de Balzac (1799-1850) held that behind every fortune there is a crime, a judgment with which I would disagree if he intended to suggest that in every case the fortune is conceived in crime. Another Frenchman, Pierre Joseph Proudhon (1809- 1865), in soaring hyperbole simply stated: "Property is theft. " With these notions--flares on a distant horizon--we need not concern ourselves here. But today, in view of what we are now about to consider, it could be said with some justness in paraphrase of Proudhon: "Business is crime. " And if this were so, businessmen would be, in all simplicity, criminals.
Both the Kefauver and Kennedy investigations were rooted to a considerable extent in newspaper preconceptions. And the standard newspaper pattern of crime in the United States is based on and has itself shaped the FBI's annual Federal Uniform Crime Reports, with variations here and there to suit individual editorial prejudices. These reports consist solely of crimes known to the police.
In this pattern thousands of individuals each year commit crimes ranging from petty larceny to murder. Some of these offenses, particularly theft, are committed for gain; many, particularly murder, are committed under emotional stress. Most convictions for theft, rape and assault involve members of the lower socio-economic classes. The culprits number few property holders except an occasional embattled husband and wife, ]over and mistress, or small-business arsonist.
Deviating a bit now from the annual Federal Uniform Crime Reports, the newspapers also recognize organized underworld crime and crime committed by politicians. The latter in the main, according to the press, receive bribes and graft, and are seldom caught; it is usually a red-letter day for the newspapers when one is convicted, providing much ground for editorial moralizing: the sanctity of the home, American institutions, the Founding Fathers. . . .
But the most threatening sort of crime to news editors is organized crime, carried on by Mafias, Cosa Nostras, Syndicates, gangs, mobs, and other nefarious enterprises. Sometimes these appear as coast-to-coast operations, under a shadowy board of sinister directors, wrong guys all. At other times they are purely regional but interlocking with other regional enterprises. The syndicates rule over gambling, prostitution, white slaving, drug peddling, smuggling, counterfeiting, fencing stolen goods, shady hotels, night clubs, bootlegging, labor racketeering and all manner of systematic evil, public
and private. They are protected by politicians, a disturbing special species, who participate in the ill-gotten gains and snicker all the way to the bank.
Although these phenomena are indeed all present in profusion, as a full pattern of American crime the picture is false and has been shown to be so by the scientific experts in the field--the criminologists. Nonetheless, every newspaper continues to present it, which is much like ignoring Pasteur's germ theory of disease in reporting on medicine.
Nearly all of these newspaper-featured crimes are crimes reported, if reported at all, to the police, although bribery of public officials and of the, police themselves is rarely so reported. But criminologists, interested in all crime, cannot confine themselves to police-reported crimes. They are interested as sociologists (criminology is a subdivision of sociology, the study of group behavior) in (1) crimes that may not be reported at all and (2) crimes reported to administrative agencies other than the police, such as juvenile boards. Many crimes are never reported. Rape is often not reported--some say 80 per cent of the time--because the victim, subject to twisted puritanical values, feels disgraced, stigmatized. Again, special agencies have been established for taking cognizance of many crimes, as of juvenile delinquents and businessmen, and newspaper reporting of the work of these agencies is extremely tentative.
Upper-Class Crime
The sorts of crimes ignored by newspapers in their bulk and persistence are what the late Professor Edwin H. Sutherland (1883-1950) of Indiana University called "white collar crime. " Sutherland was known as "the dean of American criminologists. " He was a former president of the American Sociological Association and chairman of his department. Out of his work, as out of Pasteur's, albeit on a smaller scale, there has grown an internationally reputed school of specialized researchers.
Sutherland like other criminologists was interested in the causes of crime, for which there are many divergent and irreconcilable theories. 21 He analyzed these theories, showed them defective. As a sociologist Sutherland was impressed as long ago as 1925 with the fact that more than 98 per cent of the prison population came from the lowest socio-economic classes; less than 2 per cent came from the upper classes. 22 To explain this disparity criminologists had developed two special theories: that crime is caused by poverty, that crime is caused by mental illness.
But Sutherland could accept neither as overarching in its explanation. He noticed, first, that well-to-do people showing no signs of mental disease commit what everybody agrees are serious crimes (murder, for example) and be then noticed that most of the poor were painfully law-abiding. And if poverty was not a cause of crime it did not account for the patent fact that most people in prison were very poor.
Reaching for a more enveloping standard, Sutherland concluded after prolonged study that crime--apart from impulsive crime--is no more than learned behavior that deviates from some prescribed norm. It may be learned in various ways or by face-to-face association with dominant persons who prescribe and approve the deviant behavior, giving rise to Sutherland's differential-association theory. The criminal, in acting, simply substitutes a different norm in accord with the teachings of those on whom he is dependent, usually the younger vis-a-vis the older on all social levels. Sutherland did not pursue the question of why some personalities made apt learners and others did not.
But, if this is so, it does not account for the preponderance of poor people in prisons unless one is to conclude that they alone have been instructed in deviant values. Why this preponderance? And why do some well-to-do lawbreakers land in prison and not others?
Sutherland after much inquiry noticed that the laws are written and administered with different emphases. In general, crimes in which property or the propertied might be injured, even though the nonpropertied might be injured by them as well, were implemented with much more severe sanctions than other crimes.
Most offenses open to members of the upper socio-economic class other than those traditionally proscribed, as he found, were dealt with by special administrative tribunals. The offenses were mostly variants of fraud or conspiracy. Where they were committed against the broad public they called for relatively light penalties, seldom prison terms. Verdicts against the offender were often carefully phrased so as to be nonstigmatic. But the crimes accessible to the lower classes, involving violence or direct theft or some of each, called for penalties that were physically severe and were intensely stigmatic in their language, some so stigmatic that the victims themselves could not use it--e. g. , rape and blackmail.
Even when a member of the upper socio-economic class was found guilty of a stigmatic crime and was about to be sentenced, there was a marked difference in language of the judge. Often in the case of a culprit of the lower classes the judge administered a savage tongue-lashing, while the defendant hung his head and his family sobbed, terrorized. But when upper-class culprits had been convicted in criminal court of using the mails to defraud the general public, the judge (as quoted by Sutherland) typically said: "You are men of affairs, of experience, of refinement and culture, of excellent reputation and standing in the business and social world. " They were in fact, as the judicial process had just disclosed, criminals. This difference in attitudes of judges is often pronounced. Severely reprehending toward members of the lower classes, the judges become wistful, melancholy or sadly philosophical when sentencing men of the upper class. (After all, this isn't strange as they both come from the same class, may have gone to the same school and may belong to the same clubs. ) And a sad duty does indeed confront the judge in contrast with those joyful occasions when he can say to some despicable specimen just convicted of armed robbery: "I sentence you to twenty years at hard labor. "
When Sutherland inquired closely be found, contrary to the established supposition, that many members of the upper classes did commit offenses for which the government held them accountable. But in most cases special arrangements had been made to handle them with kid gloves and in many cases to administer by way of punishment a slap on the wrist. 23
Nor was the reason for differential formulation and application of the law hard to find. The class whose members were being proceeded against was the class that had the dominant influence in the government and supported the political parties at the top. It was, indeed, their government and their political parties engaged in running their very own plantation.
As to the vast volume of crimes of all kinds in modern society, upper-class and lower- class, Sutherland is very clear about general background. "After the disappearance of the nobility," he says, "business men constituted the elite, and wealth became respected above all other attainments; necessarily, poverty became a disgrace. Wealth was therefore identified with worth, and worth was made known to the public by conspicuous consumption. The desire for symbols of luxury, ease, and success, developed by competitive consumption and by competitive salesmanship, spread to all classes and the simple life was no longer satisfying. . . . High crime rates are to be expected in a social system in which great emphasis is placed upon the success goal-- attainment of individual wealth--and relatively slight emphasis is placed upon the proper means and devices for achieving this goal. In this type of social organization the
generally approved 'rules of the game' may be known to those who evade them, but the emotional supports which accompany conformity to the rules are offset by the stress on the success goal. " 24
What Sutherland referred to as white collar crime did not concern some kind of newly discovered crime nor was it an extension of the concept of crime. He employed the white collar notion as Alfred P. Sloan had employed it in The Autobiography of a White Collar Worker. It referred simply to crimes open to commitment only by the upper, respected, approved and socially preferred class. Not reported to the police, these were of little interest to simple-minded police-oriented newspapers; they were reported to special administrative agencies.
Sutherland first presented his thesis in a speech in 1939 to the American Sociological Association. He later published a series of monographs and in 1949 a book, White Collar Crime. 25 This book is already a classic of sociology, ranking in the opinion of some professionals with works like Emile Durkheim's Suicide and perhaps even Max Weber's Protestant Ethic and the Spirit of Capitalism.
It is required reading for anyone who wants to understand American society as well as crime and modern criminology.
"The thesis of this book, stated positively," says Sutherland, "is that persons of the upper socio-economic class engage in much criminal behavior; that this criminal behavior differs from the criminal behavior of the lower socio-economic class principally in the administrative procedures which are used in dealing with the offenders; and that variations in administrative procedures are not significant from the point of view of causation of crime. Today tuberculosis is treated by streptomycin; but the causes of tuberculosis were no different when it was treated by poultices and blood- letting. " 26
Sutherland accepts the combination of two abstract criteria used by legal scholars to define crime: a legal description of an act as socially injurious and a legal provision of a penalty for the act. 27
White collar crime, as Sutherland makes clear, is far more costly than crimes customarily regarded as constituting the "crime problem. " 28 The crimes committed
mostly by the propertied and wealthy in the course of managing their property include embezzlement; most big fraud; restraint of trade; misrepresentation in advertising and in the sale of securities; infringements of patents, trademarks and copyrights; industrial espionage; illegal labor practices; violations of war regulations; violation of trust; secret rebates and kickbacks; commercial and political bribery; wash sales; misleading balance sheets; false claims; dilution of products; prohibited forms of monopoly; income-tax falsification; adulteration of food and drugs; padding of expense accounts; use of substandard materials; rigging markets; price-fixing; mislabeling; false weights and measurements; internal corporate manipulation, etc. , etc. Except for tax fraud the ordinary man is never in a position to commit these crimes.
A distinction between most white collar crime and most ordinary crime is that the white collar criminal does not usually make use of violence; he depends chiefly on stealth, deceit or conspiracy. In the case of illegal labor practices, however, he does often through agents employ violence leading to death of workers. And there may be violent, even fatal, reactions to some of its nonviolent forms, such as the consequence of adulteration or improper preparation of foods and drugs.
The "white collar criminals, however, are by far the most dangerous to society of any type of criminals from the point of view of effects on private property and social institutions. " 29 For their predations gradually tend to undermine public morale and spread social disorganization. 30 Large-scale stock swindles, bank manipulations and
food and drug adulteration administer particularly convulsive shocks to broad segments of the populace. The volume of total violations, much of it officially unchallenged, leads to a spreading mood of public cynicism and more and more rank-and-file lawbreaking. It is finally echoed in the statement: "There's one law for the rich and another law for the poor. " Government itself stands impugned. The stage is set for anarchy, sometimes emerging in riots.
An equally grave consequence, which Sutherland does not notice but upon which I shall later touch, is that the attempt to gloss over, conceal, minimize and apologize for white collar crime in general and in specific cases trammels the channels of public communication, undermines the terms of public debate and clouds the critical faculties even of many scholars.
The laws relating to white collar crime, as Sutherland remarks, tend to "conceal the
criminality of the behavior" and thus do not reinforce the public mores as do other laws. 31
Sutherland surveyed the laws and took note of those instances in which white collar crime is explicitly stated to be crime and those where it is only implicitly indicated. White collar crimes are committed by individuals and by corporations, mostly the latter as the transmission mechanisms of widespread illegal planning. They are committed against a small number of persons in a particular occupation or against the general public; it is rarely a case of individual versus individual. Individuals only commit such white collar crimes as embezzlement and fraud, and when they do they come under statutes clearly labeled criminal.
But there are many newer statutes, developed incident to the emergence of machine technology and the modern corporation.
There are, first, the antitrust laws--the Sherman Act, the amendment thereto establishing the Federal Trade Commission, the Clayton Act and other amendments. The Sherman Act is explicitly stated to be criminal law, and various of its amendments explicitly define violations as crimes. The amendments are largely under the jurisdiction of the Federal Trade Commission, which may issue cease-and-desist orders or enter into stipulations for the termination of some behavior. If a stipulation is violated there may be issued a cease-and-desist order, and if this is violated there may be issued a court injunction, the violation of which is punishable as contempt of court, provided for in the original Act. If the interim procedures (similar to probation in the ordinary courts) are not effective, fines and imprisonment may be imposed for contempt. An unlawful act, as Sutherland remarks, is not legally defined as criminal by the fact that it is punished but by the fact that it is punishable. It follows from these and other considerations that "all the decisions made under the amendments to the antitrust law are decisions that the corporations committed crimes. " 32
Laws against false advertising, designed to protect competitors and consumers, and the National Labor Relations Law, designed to protect employees against coercion and the public from interference with commerce, are adaptations of the common law to modern conditions. Laws against false advertising relate to common-law fraud. There are, too, laws against infringement of patents, which relate to the common-law prohibitions of restrictions on freedom in the form of assault, false imprisonment and extortion. Prior to the enactment of these and other laws the basic common law already expressed itself against restraint of trade, monopoly and unfair competition.
False labeling, a variant of false advertising, is defined as crime in the Pure Food and Drug Act. False advertising in the Federal Trade Commission Act is defined as unfair competition, and comes under the same criminal procedure as its other violations. It is fraud.
As to the National Labor Relations Act, "all of the decisions under this law, which is enforceable by penal sanctions, are decisions that crimes were committed. " 33
Most white collar criminal statutes are relatively nonstigmatic--that is, they don't arouse an automatic reaction of reprehension in the broad public. That someone has been convicted of using the mails to defraud, or has restrained trade, does not sound as heinous as if he had been convicted of robbing post boxes even though in the first cases very large sums may have been illegally taken from millions of people and in the latter case perhaps only a Social Security check from a single individual.
The crimes of the lower socio-economic classes, however--most of them embalmed in the Federal Uniform Crime Reports-- do carry with them deep social stigmas, They are, in part owing to newspaper emphasis, socially disgraceful. They exclude one from respectable society and curtail one's civil privileges.
In the case of most crimes in the white collar area, too, the penalties are notably lighter than for crimes reportable to the police. Few of these crimes, even when they individually involve sums greatly exceeding all the burglaries and bank holdups in a year, call for prison sentences. Most call for nominal fines, and some require that the defendant merely not repeat the crime. In a few the action is broken off with the defendant signing a consent decree agreeing to terminate a lucrative course of illegal action.
There would be difficulty in imposing jail sentences or executions in many of these cases, because the defendants are usually corporations. While the courts have decreed in their wisdom that corporations are "persons" and are entitled to all the protections of persons, it is a fact that one can't jail or execute a corporation. And officers of a corporation, being quite different persons, cannot, it seems, justly be held responsible by a careful Congress for the acts of the corporation. Even where the acts of the corporation have netted millions in illicit gain, the fines prescribed by a benevolent Congress are trivial compared with the gains. It is true that the legislation establishing the Sherman Act and the Federal Trade Commission did provide for prosecution of officers of offending corporations; but such prosecutions have rarely been launched by business-minded public officials. And prosecutions under the Sherman Act are wholly at the discretion of the Attorney General. They are not mandatory, hence are subject to political juggling.
Corporate Crime
Sutherland centered his study on the behavior of corporations, the instruments of much steadily continuing crime. 34
He took the seventy largest nonfinancial corporations as given on two lists, that of Berle and Means in The Modern Corporation and Private Property (1933) and that of the Senate Temporary National Economic Committee (1938). He then excluded from these lists public utility corporations (he examined fifteen power and light companies separately) and the corporations in one other industry. Left with sixty-eight corporations, he added two that appeared on the list of 1938 and not on the list of 1929. It was a list representative of the cream of corporate society, the elite. 35
The average life of these corporations was forty-five years. Their criminal histories were traced through official records, which Sutherland names.
He found a total of 980 decisions against these corporations, with a maximum of 50 for one and an average per corporation of 14. 0. No fewer than 60 (or almost all) had decisions against them for restraining trade, 53 for infringements, 44 for unfair labor practices, 43 for a variety of offenses, 28 for misrepresentation in advertising and 26 for rebates. In all there were 307 adverse decisions on restraining trade, 97 on
misrepresentation, 222 on infringement, 158 on unfair labor practices, 66 on rebates and 130 on other cases.
One hundred and fifty-eight of these decisions were entered in criminal court, 296 were in civil court, 129 were in equity court, 361 were by commission order, 25 were by commission confiscation and 11 were by commission settlement.
Even if the analysis had been limited to explicit criminal jurisdiction, 60 per cent of the corporations (or 42), with an average of four convictions each, had experienced that particularly stigmatic jurisdiction. As Sutherland points out, in many states persons with four convictions are defined as habitual criminals or "repeaters. " Applying this concept to corporations, on the average at least 60 per cent of the leading corporations are habitual criminals.
Few cases initiated after 1944 are included in the Sutherland study, and the author warns that his work does not include all violations that have taken place because not all administrations were vigorous in enforcing the law and not all cases were systematically recorded. In general, there was lax enforcement under Republican Administrations-- only 40 per cent of the cases from 1900 to 1944 date from prior to 1934--and more alert enforcement under Democratic Administrations. The most serious attempts at enforcement occurred under the New Deal, although the bulk of the laws had been on the books for many decades. One gets some insight here into reasons for the pre- Johnsonian enthusiasm of the corporate world for the foot-dragging Republican Party as well as some understanding of the quid pro quo for heavy national campaign contributions.
Of these seventy corporations, Sutherland found, thirty were either illegitimate in origin or began illegal activities immediately thereafter. Eight others, he found, were "probably" illegal in origin or in beginning policies. The finding of original illegitimacy was made with respect to twenty-one corporations in formal court decisions, by "other historical evidence" in the other cases.
Sutherland does not attempt any estimate of the total loot (all depressing to the common living standard) produced by these and unadjudicated violations, But, as many violations continued for long periods of time, it must run into large sums that make the work of Mafias, Cosa Nostras, and spurious labor unions look like extremely petty operations. One cannot, of course, attribute the entire income of these corporations to criminal behavior although a part of net income was the consequence of criminal activity. In the case only of the twenty-nine that were born in crime--to which Balzac's phrase would certainly apply--could one attribute all the subsequent earnings to criminal behavior. But the total criminal haul, throwing a garish light on the maxim "Crime doesn't pay," ran into billions upon billions of dollars for these seventy corporations alone. Crime, carefully planned and executed, is demonstrably the royal highroad to pecuniary success in the United States.
Corporate crime is, indeed, crime in the grand manner. But it isn't part of the pattern of crime as presented by the newspapers. Why the newspapers aren't fully alert to this sort of wrongdoing apart from ineptitude, why they don't include it in the standard pattern of crime, is not difficult to decide. Nearly all the advertising revenues of the newspapers and mass magazines, as well as of radio and television stations and networks, come from these same corporations and their smaller counterparts. Although reporting individual large cases as they arise (not always prominently or fully) the newspapers have never despite recent sociological revelations ventured statistical summaries of the situation as they regularly do with lower-class, police-reported crimes--a marked case of class bias. Even the large individual cases are only reported
fully in a few leading metropolitan papers. They tend to be ignored by the many hundreds of others.
Not only are acts of commission unreported or diminished in significance, but those who commit these acts with the corporations as pliant tools are in their general modus operandi held up to public view as the cream and bulwark of society, the very pillars of the nation. Such a strange state of mind is inculcated in the public that a correct statement of the facts inevitably seems bizarre, overdrawn, tendentious and even perversely subversive.
The leading stockholders in these corporations--80 per cent of all stock being held by 1. 6 per cent of all adults--consist of the wealthiest property owners in the country. The leading company executives are the most highly paid group in the country, drawing remuneration astronomically exceeding that of skilled professional people. 36
Corporations as Ideal Delinquents
Sutherland compares the behavior of corporations and their officers with that of the professional thief, "the ideal delinquent, of which he made a special almost classical study. 37 Both are "repeaters," persistent operators; illegal behavior of both is more extensive than complaints and prosecutions show; neither loses status with associates but may instead be admired; each customarily orally expresses contempt for law, government and governmental personnel; and the crimes of both are not only deliberate but organized. They are, however, different in their self-conceptions. The professional thief recognizes himself as a criminal and is so regarded by the public; the corporate man thinks of himself as respectable and is generally so regarded by the public.
But white collar criminals often, as Sutherland points out, admit to being "law violators," a distinction without a substantial difference. Another difference is that the crime of the professional thief is plainly visible whereas the crime of the corporation is camouflaged, hard to detect. Corporate men, unlike professional thieves, rationalize their acts by semantic substitutions. Fraudulent representation is excused as merely puffing one's wares, and so on. Extravagant or insistent claims are called "the hard sell," conspiracy in restraint of trade is "a gentleman's agreement," price fixing is "stabilizing the market," monopolistic practices are suggested as laudatory evidence of "a hard competitor. " Yet both the professional thief and the corporation use aliases, the latter by forming subterfuge subsidiaries, dummy companies, inventing new brand names for the same product to escape new regulations or developing "fighting" brands. In public defense both employ "mouthpieces. " The professional thief usually has only a lawyer, but the corporation and the corporate man have lawyers, advertising agents and public relations counselors. These latter influence lawmaking and law enforcement as they relate to the corporation as well as defend the company in court and before the public. The object is the same in both cases: to get the client off scot free.
But although different from the professional thief in that it is directed by a group and thus invokes for itself the maximum of rationality, the corporation is similar, says Sutherland, in that it selects crimes risking the least danger of detection and identification and against which victims are least likely to struggle. It selects crimes that are difficult to prove and it engages in the wholesale "fixing" of cases. The corporations when they encounter officials they cannot "fix" have gone as high as the president of the United States to remove them. In general, says Sutherland, the "fixing" of white collar criminals is much more extensive than that of professional thieves. It is also much more costly, and he cites the case of the bribe of $750,000 by four insurance companies that sent Boss Pendergast of Missouri to jail, later to be pardoned by President Truman (who originally belonged to the Pendergast organization). It was almost ten years before the
insurance companies were convicted. Then they were only fined; no insurance executives went to jail.
There was, too, the case of Federal judge Martin Manton who was convicted of accepting a bribe of $250,000 from agents of the defendant when he presided over a case charging exorbitant salaries were improperly paid to officers of the American Tobacco Company. While the attorney for the company was disbarred from the federal courts, the assistant to the company president (who made the arrangements) was soon thereafter promoted to vice president: a good boy.
In the case of white collar crimes of corporations, if any individual is punished (usually none is) it is only one or a very few. The authorities do not dig pertinaciously with a view to ferreting out every last person who had anything to do with the case. But, as Sutherland points out, it is different with crimes of the lower classes. In kidnapping, for example, the FBI, in addition to seizing the kidnappers, flushes to the surface anyone who (1) rented them quarters to conceal the kidnapped person or to hide out in; (2) acted as unwitting agents for them in conveying messages or collecting ransom; (3) transported them; (4) in any way innocently gave them aid and assistance; or (5) was a witness to any of these separate acts. The government men do such a splendid job that almost everyone except the obstetricians who brought the various parties into the world are brought before the bar, where the aroused judge "breaks the book over their heads" in the course of sentencing. Sovereignty, it turns out after all, is not to be trifled with.
It may be argued that kidnapping, which resorts to violence, is a more serious crime than bribing a judge. With this I would disagree. Gravely serious though kidnapping is, its commission strikes directly at only a few, and in most cases involves comparatively small sums--even though they seem large to the ordinary man. But bribing a judge--and in the Manton case far more than any known kidnap ransom was at stake--strikes at a very broad public and, indeed, at the foundations of social institutions in general. It is subversive in the deepest and truest sense.
Emulatory Crime in the Ranks
What is of particular interest is the vast amount of emulatory crime white collar crime inspires among underlings, insiders and outsiders, much of this never reported to the police. Companies, as many reports since World War II show in Fortune, the Wall Street Journal and other business papers, are increasingly subject to constant depredations. Specialty, department and chain stores are subject to a continuous pressure of theft, which led one security officer to state his opinion publicly that 25 per cent of the public is absolutely honest and wouldn't steal under any circumstance, 25 per cent is systematically seeking opportunities to steal and 50 per cent is ready to steal at any time it feels certain of escaping detection.
There is a constant assault on the corporate fortress from the inside as well, by employees who steal from stockrooms and loading platforms and who gave in some cases organized truly gigantic withdrawals of goods. Embezzlement is rife. Only a few years ago some of the police in Chicago and Denver were found to be practicing old- fashioned burglary on a large scale as a supplement to low salaries.
If money is evidence of personal worth, then many persons are out to prove they are as worthy as anyone in Wall Street.
In eight and one-half concentrated pages Sutherland gives a synopsis of crime in the United States. 38 Fraud is extensive in the professions--legal, medical, clergical-- although he rates physicians and surgeons rather favorably on the whole. Bribery of officials, particularly by businesses selling goods to municipalities, counties and states, is common. But within private business itself corruption is internally quite common. He
reports: "Buyers for department stores, hotels, factories, railways, and almost all other concerns which make purchases on a large scale accept and sometimes demand gifts of money payments. " Again, "The police constantly break the laws. The laws of arrest are rigidly limited, but the police exercise their authority with little reference to these limitations and in violation of law. Hopkins refers to illegal arrests as kidnappings, and in this sense, the number of kidnappings by the police is thousands of times as great as the number of kidnappings by burglars and robbers. The courts, similarly, are not immune from criminal contagion, and this is true especially of the lower courts. "
'The United States, the plain unvarnished facts show, is a very criminal society, led in its criminality by its upper socio-economic classes. 39
Contemporary Big Business Crime
Has the ominous outlook altered since Sutherland terminated analysis as of 1944?
It has not changed in the slightest. In the two decades since 1945 the acts cited by Sutherland continued--in many cases with redoubled force; for the penalties imposed by law are obviously not of sufficient weight to deter. One can make large sums of money in business by breaking the law up to the point where one is ordered to stop or is indicted.
In the Federal Trade Commission alone, from January 1, 1945, through fiscal 1965 as given in annual reports, there were 3,991 cease-and-desist orders for violations by enterprises large and small. 40 The largest corporations were conspicuously represented, along with ambitious small fry. The specific violations were: false or misleading advertising, using a misleading trade or corporate name, using false or misleading endorsements, removing or concealing law-required markings, disparaging competitors' products, misrepresentation and deception, false invoicing, misbranding and mislabeling, deceptive pricing, failing to make material disclosures, offering deceptive inducements, obtaining information by subterfuge, using misleading product name or title, shipping for demand-payment goods not ordered, etc. , etc.
In the Food and Drug Administration, which administers the amended Food, Drug and Cosmetic Act of 1938, there were 5,208 criminal prosecutions from 1945 through 1961, an average of 306 per year. 41 Many of these were for distributing poisonous or contaminated products. Fines and jail sentences were usually meted out.
In its 26th annual report, the United States Securities and Exchange Commission, empowered to supervise the issuance, sale and resale of securities, reports that "From 1934, when the Commission was established, until June 30, 1960, 2,777 defendants have been indicted in the United States District Courts in 645 cases developed by the Commission, and 1,385 convictions obtained in 585 cases. The record of convictions obtained and upheld is over 85 per cent for the 26-year life of the Commission. " 42
"During the past fiscal year," says the 1960 report, "53 cases were referred to the Department of Justice for prosecution. This is the highest number of referrals in the past 18 years and the second highest in the Commission's history and is in line with the continuing increase in the number of referrals during the past several years. As a result of these and prior referrals, 43 indictments were returned against 289 defendants during the fiscal year. " 43
The Securities and Exchange Commission, of course, deals with thousands more cases each year in which it issues orders to discontinue illegal practices.
The National Labor Relations Board, which processed only a few more than 1,000 cases in 1936 and now processes more than 25,000 a year, enforces fair labor practices
as defined in the twice-amended National Labor Relations Act of 1935. Most of its rulings on appeal to the courts have been sustained.
Of 2,719 cases subjected to judicial review up to June 30, 1964, the orders of the NLRB were fully affirmed in 57 per cent of the cases and affirmed with modifications in 20 per cent. In only 18 per cent of the cases was the Board completely overruled. In appeals to the Supreme Court, the Board was affirmed in 63 per cent of the cases and affirmed with modifications in 8 per cent. The Supreme Court overruled the Board completely in 17 per cent of the cases. 44
This Board, a quasi-judicial tribunal similar to the Federal Trade Commission, the Securities and Exchange Commission and the Food and Drug Administration, issues injunctions and supervises violators and, according to the National Labor Relations Act, "Any person who shall willfully resist, prevent, impede, or interfere with any member of the Board or any of its agents or agencies in the performance of duties pursuant to this act shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year or both. " Complaints under this criminal statute are brought by individuals and unions against employers and by employers against unions. 45
Business or white collar crimes are usually thought of as nonviolent, thus placing the culprits in public opinion at least a peg above such unorthodox businessmen as Frank Nitti, Tony Accardo and Frank Costello. But this differentiation is clearly false, as is shown in many cases of record before the National Labor Relations Board. A recent pattern, as brought to light by the McClellan Committee, is for Company X to hire "labor relations adviser" A who in turn enrolls certified thugs T1, T2, and T3, to beat up, bribe, drive away or destroy labor organizer L.
Up to 1945, according to Sutherland, labor relations decisions had been made against 43 of the 70 large corporations, or 60 per cent, with 149 decisions in all. All 43 were "repeaters": 39 used interference, restraint and coercion; 33 discriminated against union members; 34 organized company unions; 13 used labor spies; and 5 used violence. Such violence was largely confined to the steel and automobile industries.
The late Henry Ford was quoted as saying in 1937: "We'll never recognize the United Automobile Workers Union or any other union. " The Ford Motor Company had long maintained a service department under Harry Bennett, a former pugilist, staffed with 600 men equipped with guns and blackjacks. With reference to this service department Frank Murphy, then governor of Michigan, said: "Henry Ford employs some of the worst gangsters in our city.
According to undisputed testimony before the NLRB, in 1937 the United Automobile Workers Union started to organize employees at Ford's River Rouge plant. It was announced that Organizers would distribute literature outside the plant at a specified time, and reporters and photographers were present in force. Said a guard to a reporter: "We are going to throw them to hell out of here. " Upon arrival the organizers went up an overhead ramp to one of the entrances, where they were told they were trespassing. Witnesses said they turned and started away. As they left they were assaulted by service department guards--beaten, knocked down and kicked. Witnesses testified that it was a "terrific beating" and "unbelievably brutal. " Among those severely beaten were Walter Reuther and Richard Frankensteen, officials of the United Automobile Workers Union.
The guards followed out into the street. One man's skull was fractured, another's back broken. Cameras of photographers were seized by guards and the films destroyed. Two reporters were chased by automobile at eighty miles an hour through Detroit streets until they reached the sanctuary of a police station. Later when women organizers attempted to distribute literature outside the plant they were attacked by guards,
knocked down and beaten. City policemen who were present during these events stood by and did not interfere--testimony to the local power of Henry Ford. 46
From fiscal years 1959 through 1965, inclusive, the Antitrust Division of the Department of Justice won 147 formally designated criminal cases against companies and lost 24. It won 206 civil cases and lost 9. 47
Other disciplinary bodies to which one should turn for a more complete picture of such business violations as are judicially decided are the Federal Communications Commission, the Civil Aeronautics Authority, Federal Aviation Agency, Federal Power Commission and the Interstate Commerce Commission.
There is no federal agency that compiles, correlates and makes public the statistics on corporate crimes as the FBI does with diverse police-reported crimes in the Federal Uniform Crime Reports. If there were, there would be shown a much larger volume of corporate crime than reported here. It is well recognized by experts that the enforcement of laws against corporate crimes is at best of a sporadic token character carried on by understaffed and underfinanced agencies.
The Federal Uniform Crime Reports serve a purpose beyond merely informing the public of the incidence of crime, which they do only very lopsidedly and exaggeratedly for these particular crimes. The Reports have the intent, as evidenced in many public expressions by J.