Let’s say you have a big trader who passes along inside information with no expectation of receiving a damn thing. He just does it knowing it is wrong. Let’s also assume that the offender is a really good man whose life has been lived at an exemplary level. As the sentencing judge, do you want (do you need) to know why the offender did what he did? The answer to that question is more complex and much harder than you might imagine. At the end of this post, I will have a question, and I hope readers will provide an answer.
I am pleased to call to your attention a very interesting and important new article on this subject written by Todd Haugh, a former Supreme Court fellow and a law professor at Chicago-Kent. The title to the article is: Sentencing the Why of White Collar Crime. The piece will appear in the Fordham Law Review, but for now you can find it here (on the Social Science Research Network for free).
The abstract reads like this:
“So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years. The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested. What was it that Judge Rakoff found in Gupta that warranted such a modest sentence? While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is exceedingly clear that Judge Rakoff’s search for those motivations impacted the sentence imposed.
This search by judges sentencing white collar defendants — the search to understand the “why” motivating defendants’ actions — is what this article explores. When judges inquire into defendants’ motivations, they necessarily delve into the psychological justifications defendants employ to free themselves from the social norms they previously followed, thereby allowing themselves to engage in criminality. These “techniques of neutralization” are precursors to white collar crime, and they impact courts’ sentencing decisions. Yet the role of neutralizations in sentencing has been largely unexamined. This article rectifies that absence by drawing on established criminological theory and applying it to three recent high-profile white collar cases. Ultimately, this article concludes that judges’ search for the “why” of white collar crime, which occurs primarily through the exploration of offender neutralizations, is legally and normatively justified. While there are potential drawbacks to judges conducting these inquiries, they are outweighed by the benefits of increased individualized sentencing and opportunities to disrupt the mechanisms that make white collar crime possible.
Now my question: Isn’t a judge’s search for an explanation of why rich white guys commit financial crime as a reason for mitigating harsh sentences a terrible idea if only because as a normative matter rich white guys deserve no further breaks in life?