Theorizing the drop in white-collar crime prosecutions: An ecological model
| Published date | 01 April 2021 |
| Date | 01 April 2021 |
| DOI | 10.1177/1462474520939060 |
| Author | Joe McGrath,Deirdre Healy |
| Subject Matter | Articles |
Article
Theorizing the drop
in white-collar crime
prosecutions: An
ecological model
Joe McGrath and Deirdre Healy
University College Dublin, Ireland
Abstract
This article theorizes prosecutorial decision-making using an ecological model which
proposes that prosecutorial outcomes are shaped by four inter-related and intersecting
systems: (a) macro-level, or societal, factors such as crime rates (b) meso- and exo-
level factors, such as organisational culture, (c) micro-level factors, such as interactions
between prosecutors, and (d) individual-level factors, such as victim and perpetrator
characteristics. While the model is designed to explain prosecutorial decision-making in
general, it also accounts for the paradoxical trends observed in the US since the
financial crash in 2008 when the number of prosecutions fell despite a heating up of
political rhetoric around white-collar crime. The utility of the model is explored
through a critical reading of the extant literature and an analysis of relevant qualitative
and quantitative data. The discussion shows that, while each set of factors shapes
prosecutorial outcomes to some extent, two explanations are particularly convincing.
First, the data suggest that the dip in prosecutions may be explained by prosecutors
focusing limited resources on more serious (albeit fewer) cases. Second, delays in case
processing emerged sometime between 2011 and 2012 due to bottlenecks in the
criminal justice process and coincided with the fall in prosecutions. While the roles
played by some of the factors considered in this article are already well-known, the
contributions of systemic delays and the shift towards more resource intensive cases
represent new findings.
Keywords
ecological, prosecutions, white-collar crime
Corresponding author:
Joe McGrath, Sutherland School of Law, University College Dublin, Belfield, Dublin 4, Ireland.
Email: joe.mcgrath@ucd.ie
Punishment & Society
2021, Vol. 23(2) 164–189
!The Author(s) 2020
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DOI: 10.1177/1462474520939060
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It is widely agreed that attitudes towards white-collar crime have hardened among
politicians, legislators, and the public. Empirical studies since the 1970s indicate
that members of the public consider white-collar crime to be as harmful as
so-called “ordinary crime” and support tougher punishments for white-collar crim-
inals (Cullen et al, 1983; Reed and Reed, 1975). These sentiments have been linked
to a burgeoning desire for equality before the law in the wake of the civil liberties
movement and increased distrust of authority after the Watergate scandal (Katz,
1980). Some argue that accounting scandals at Enron and Worldcom at the turn of
the 21st century further crystallised these sentiments and transformed public opin-
ion so that “High-profile offenders are now seen not as respected community
citizens but as ‘bad guys’ whose crimes reflect inordinate greed and a disturbing
lack of concern for victims” (Cullen et al, 2009). The financial crisis in 2008 is
thought to have further politicised white-collar criminality (Healy and McGrath,
2019) with politicians attributing the financial crisis to “fat cat bankers on Wall
Street” (Williamson, 2009) and equating bankers with criminals “who have made
out like bandits” (Kady, 2009). Since coming to office, President Trump has par-
doned numerous high-profile federal white-collar criminals (Shear and Haberman,
2020), drawing attention to Sutherland’s (1949) original concern with the differ-
ential application of the law in white-collar crime cases. Notwithstanding this
political shift, the prevailing attitude towards white-collar criminals remains
unsympathetic. The pardons drew significant criticism, with some suggesting
that Trump was “an ethical monster” (Rubin, 2020) who “goes easy” on white-
collar criminals (Bokat-Lindell, 2020).
Though there are good reasons to expect stringent criminal justice approaches
to white-collar criminality, prosecution and sentencing practices are more complex
than indicated by legal developments, public sentiments or political rhetoric
(Garland, 2018; Newburn et al., 2018; Rubin and Phelps, 2017). This article
presents an ecological model that attempts to theorise prosecutorial decision-
making processes. According to the proposed model, prosecutorial outcomes are
shaped by four inter-related and intersecting systems: macro-level or societal fac-
tors; meso- and exo-level factors such as organisational culture; micro-level factors
such as interactions between prosecutors and between prosecutors, perpetrators
and victims and; individual-level factors such as victim and perpetrator character-
istics. While the model aims to explain prosecutorial decision-making in general, it
also aims to shed particular light on the paradoxical trends that occurred in the US
post-2011, which are theoretically interesting but poorly understood. After 2011,
prosecutorial statistics show a decline in the number of prosecutions year-on-year,
when one might have expected prosecutions to increase in the wake of the financial
crisis. Our analysis shows that while each set of factors shapes prosecutorial out-
comes to some extent, the dip in prosecutions is best explained by prosecutors
focusing limited resources on more serious (albeit fewer) cases and delays in case
processing which emerged sometime between 2011 and 2012 due to bottlenecks in
the criminal justice process. While the roles played by some of the factors consid-
ered in this article are already well-known, the contributions of systemic delays and
McGrath and Healy 165
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