Johan Boucht writes:

On Thursday 17 October 2013 the first of the All Souls criminology seminars for the Michaelmas term 2013 was held in the Wharton Room. Professor Stuart S. Green from Rutgers School of Law in Newark, New Jersey gave an interesting talk on the topic ‘Community Perceptions on White Collar Crime Seriousness’.

White-collar crime is for many a fairly vague concept, but refers generally to financially motivated nonviolent crime often committed for monetary gain by a person of respectability in the course of his occupation. It is, according to Green, distinguished by its moral ambiguity. The purpose of this project, which grew out of a previous conceptual work published in the book ‘Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime’ (2006), project was to address the difficulty of drawing a line between criminal and non-criminal behaviour in white-collar crime (for example between fraud and aggressive business behaviour in commercial contexts), by undertaking four separate sub-studies, which asked members of the public to give their perceptions of white-collar crime regarding perjury, bribery and gratuities, and fraud. The results were published in Law & Contemporary Problems (2012) in the article ‘Public Perceptions of White Collar Crime Culpability: Bribery, Perjury and Fraud’, co-written with Matthew B. Kugler.

Methodologically the study was carried out by utilising the Amazon-based software Mechanical Turk.  The participants were asked to respond to a number of basic cases where different factors where varied leaving the other parts of the case remain unchanged, e.g. whether the particular act was considered a crime or not and whether it should be punished. About 50 persons participated in the query.

Empirical studies are not that common in law and questions of their relationship to, for example, conceptual studies may thus arise. Green considered four points (this issue was also discussed during the Q&A session). First, criminal law should not always follow the peoples’ opinions; it happens that people are simply wrong. Second, empirical studies are not to be perceived as a substitute for theoretical normative theories, but rather as a supplement by providing a perspective ‘that we might not otherwise get’. Third, the hypotheticals used in the studies are not necessarily watertight which may affect the outcome. And fourth, the findings are rarely universal, but likely to be culturally influenced.

Green presented two of the sub-studies in his talk. The first concerned bribes and gratuities. The variations of the basic case that was used concerned giving cash as a bribe, bribing by providing for renovation of the bribee’s house, bribing by giving political contributions and bribing by giving political endorsements. The results showed, perhaps not surprisingly, that campaign contributions were not considered as blameworthy as giving cash. Other variations included the act of the bribee, the purposes of payment (e.g. bribing quid pro quo in order to affect the outcome of a process or as a subsequent gratuity), as well as differences between bribing public officials and commercial actors. It is noticeable that UK law, as opposed to US law, does not distinguish between the two. Again, it was not a surprise that the study showed it was perceived more blameworthy to bribe public officials than commercial actors.

To Green’s surprise there was only an insignificant difference in blameworthiness between giving and receiving bribes. He did not, however, provide any (tentative) explanation as to why this was the case and possible reasons for the deviation from his presumption.

The second study involved perjury. One important variation related to the distinction between testimony given under oath in court and statements given to the police without oath. A clear majority of the persons that responded thought lying under oath to be blameworthy, although many also found lying to the police even when not under oath needed to be criminalised. Other variations involved the distinction between lying (the statement is literally false), and misleading (the statement is literally true but misleading) as well as the difference between inculpatory and exculpatory statements. A majority of the responders considered, for example, the latter more blameworthy than the former.

During the Q&A session an interesting question that arose was related to the purpose of empirical work as a supplement to a conceptual (normative) piece. Green found it important that the empirical work supports the conceptual conclusions and that it would be ‘a bit scary if they did not’. Not everyone agreed. It was objected that empirical studies (such as this one) have very little normative relevance and that the conceptual analysis should stand on its own. Green responded that conceptual work needs to have some correlation with the public perceptions and that the latter can also be relevant for policy makers. It was also suggested, as a compromising viewpoint, that empirical studies can fulfil a purpose as a way of achieving a ‘reflective equilibrium’.