On Theft and Punishment

(originally written May 5, uploaded July 29)

Wal-Mart executives were recently accused of bribing foreign officials, a serious offence under US law. Fortunately for them, if history is any guide (and in a justice system which highly values past precedent, it so often is, isn’t it?) no one will go to jail. By and large, white-collar crime goes lightly punished, one of many possible reasons being that wealthy people in deep-pocketed organizations can muster all-star legal lineups in their defense. Perhaps we could call this the “law of the jingle”. ;)

In yet another example of how the world is different for the 99%, punishments for “blue-collar” crime tend to pick up the slack. More troublingly for our “equal before the law” ethos, many soon-to-be-prisoners are represented by overworked court-appointed lawyers, who can’t devote as much time to cases as privately-hired counterparts. One wonders how different things would be if we all shared public defenders, the way we share public healthcare…!

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As they do in so many fields, our southern cousins seem to lead the way in judicial asymmetry. In an infamous case several years ago, a repeat offender tried twice to steal videotapes from Kmart — nine movies worth about $150. (Compare this to the expansive music and video collections your, ahem, cousin acquired through file-sharing.) These being his third and fourth offences, and California having a “three strikes” law, the thief got two consecutive twenty-five year prison sentences: a half-century in the slammer. While he had committed other offences in the past, this brings to mind how in Les Miserables, Jean Valjean was jailed five years for stealing a loaf of bread!

Bearing in mind that it costs California about $50,000 to incarcerate someone for a year, one could say the state is “investing” $2.5 million to keep this fellow behind bars. Riffing on the economic theory that people always act in their self-interest, it would seem the criminal justice system thinks it would be even more expensive for society to leave him on the streets.

On the other end of the spectrum, executives at brokerage firm MF Global recently stole $1.6 billion from customer accounts, most of it in the “chaos” of the final days as the company went under. Because as you know, when it gets busy, banks only balance their books to the nearest billion. ;) (“Your honour, we were moving that money into so many different offshore tax-haven shell company accounts we honestly lost track of what went where. And what with all the shredding… wait, you’re not buying it?”) Unfortunately, since sentencing probably won’t happen for a few years, we’ll have to turn to older examples for comparative purposes.

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About ten years ago, two top executives at Tyco stole $600 million from the company, eventually earning sentences of up to 25 years each. Pulling out ye olde calculator app, each Tyco exec got a maximum of 25 years for $300 million, or roughly one day’s jail time per $33,000. Grading on the curve for the failed Kmart thief, he would’ve gotten six and a half minutes, a bit less than the time it takes to sing “Hey Jude”.

Scaling the other way, each Tyco exec successfully stole two million times as much as the Kmart felon tried to, so in a parallel universe they both would’ve gotten one hundred million years in prison. By comparison, the dinosaurs only lasted a hundred and sixty. Forget watching paint dry, they could’ve watched oil form! (And if they had, no doubt they’d shake their heads at our tar sands extraction, muttering “what are they thinking? That junk needs to cook another million years at least!”)

It would be unfair to blame the justice system for these iniquities, because the root of the problem is probably more fundamental to our human nature. (Similarly, blaming religion for all the terrible things done in its name overlooks the fact that we’re really, really good at finding excuses to kill each other.) Many societies distinguish between higher-esteemed and lower-esteemed communities — you may recall from school that in feudal Europe, the aristocracy were called the nobles, and the serfs, villains. Nowadays we have respectable businessmen and impoverished ethnic minorities. And sentencing sure seems to depend on whether the accused is subconsciously classified as “one of us” or “The Other”.

We can see hints of this in the difficulties of the earliest Christians in the city of Rome. Europe having been the “home base” of Christianity for so long, it’s easy to forget that the first Christians arrived there from the East. Community leaders were darker-skinned folks, probably impoverished and illiterate, who didn’t speak Latin (though some might’ve known Greek). They had newfangled ideas that irritated the more respectable members of their own synagogues, like worshipping a man who’d been executed as a common criminal. And they were rumoured to’ve been cannibals.* They were such a perfect “Other” that Nero simply could not have found a better scapegoat for the Great Fire of Rome, if he’d told his people to try. Heck, it wouldn’t be surprising if he did…!

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It’s also plausible that the thought of retail theft (purse-snatchings, stick-ups) triggers a fight-or-flight response in us, and accordingly, demands for harsh punishment. In contrast, wholesale thefts (diddling the business books and similar corruptions) tend to be banal actions involving computers — hardly adrenaline-pumping stuff. This may also help explain why they’re treated less severely, despite involving much larger sums. A recent example of the latter is the “robo-signing” scandal in the US, where banks have been shown to’ve foreclosed on thousands of homes they did not in fact have title to, then tried to falsify documents after the fact, and now seem poised to escape with fines representing a small fraction of their winnings.

This explanation unfortunately turns into the logical pretzel that if a society punishes (theft of $100 + threat of violence) more severely than (theft of $1,000,000’s), when you balance the equations, the courts treat one threat of violence as the equivalent of millions of dollars. Which just seems odd; it almost comes across as incentive for wannabe white-collar crooks.

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No doubt all these issues have been addressed with careful nuance and subtlety in the Conservative Canadian government’s recently-passed crime bill. It is an omnibus bill, after all. ;) It’s also encouraging that they’ve shown such restraint with their opponents, instead of caricaturing them as “hijacking radicals”. That would be a subtle attempt to link environmentalists with the 9/11 terrorists; to their credit, thus far they’ve kept “hijacking” and “radical” in separate sentences. ;)

To offer other credit where it’s due, much of the above was influenced by The Rich Get Richer and the Poor Get Prison, a book I read at university. After getting mugged. While I was pretty much a cookie-cutter law-and-order type beforehand, it raised some formidable questions about why we choose to focus most of our crime-fighting on the bottom of the pyramid, instead of the top. (Admittedly, having the Avengers do a forensic audit of Conrad Black’s dealings, would make for a Very. Boring. Movie.)

The book’s now in its ninth edition, which means that even if the book it’s wrong, it’s pervasively wrong — not unlike today’s standard economic models. ;) The bottom line is that, because of it and other tomes, I’m one of the few people who ever got less conservative on crime, after being a victim of it! How’s that for unexpected? :)

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* some Christian traditions hold that the communion bread and wine literally becomes Jesus’ body and blood when it is consumed; others treat this metaphorically. If even one Christian proselytizer were to explain this to a local Roman without proper context, you could see how claims of cannibalism would arise…

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