From crime to class to "white collar criminal" to our present state of bliss

It is a fact that is too little noted that Karl Marx’s theory of class conflict was born out of his reporting on wood theft in Cologne in 1846, when he was struck by the fact that the crime was invented, in contradistinction from the way he had been taught the logic and rationality of the law. The real, here, was not  the rational, but bent instead to the rapacity of the propertied class – who were willing, even, to redefine property to their own benefit.

In the annals of criminology, Marx’s discovery was, for the most part, overlooked. The criminologist who assisted at international police conferences and caressed the skulls of murderers who had been oh so justly executed for their crimes were much more impressed by Cesare Lombroso and floating theories about degenerate populations than with class structures.

It took the Great Depression to bring into the world of criminology the convictions that were givens to the tabloid reporter, and the person who did it was Edwin H. Sutherland. It was Sutherland who, in  the 1930s, began looking at crimes committed by people other than the urban marginals and degenerates who were the almost exclusive focus of criminology. He was struck by the inability of prevailing theory to capture either the practices or motives of those who committed fraud or malversation on a higher level. The wood thieves around Cologne in 1846 did not think of themselves as thieves, but as the gleaners of wood in the same vein as their mothers and fathers before them, holders of a right going back to feudal times. How, Sutherland wondered, did the criminals and even businesses that violated the law understand their own actions?

 Marx, of course, began to understand class out of the invention of crime, and soon went on to devise a vast theory about the way class conflict was shaping the society of capital. Sutherland did not go so far. But where he went is of interest.

The reason Sutherland started investigating “white collar crime” (indeed, he coined the phrase) had to do with his Deweyian theory that crime was a learned activity. The criminological paradigms of the 30s, inherited from the 19th century, attributed crime to inheritance, degeneration, poverty, broken homes, or individual viciousness. Sutherland’s theory, which he called differential association, was that crime was learned through the symbols and uses of groups. Not gangs, not groups that are composed of people personally acquainted with each other – although these, too, are groups – but groups in the larger sense of members who identify with some collective. It is in these groups that the inhibition or disinhibition to crime evolves.

Here’s an example, from the recent past. In 2016, Brock Turner, a Stanford University athlete, was actually caught physically raping a passed out woman. He was convicted of this rape. The sentence handed down by Judge Aaron Persky was six months. Three months was shaved off, as time already served. In his statement about the punishment, Persky said that sentencing Turner to prison for a long time could have a “severe impact” on him.

That phrase “severe impact” reveals an abyss of assumptions about class in the U.S. – and, in particular, the assumption that certain members of the group of the affluent and educated have “futures” that must be preserved. Persky, to use Sutherland’s phrase, was differentially associated with Turner.  Certain crimes that would be severely repressed by certain members of certain groups – for whom the “severe impact” of the penitentiary is designed – are treated much more softly when committed by members of other groups. This is not simply a statistical fact, but a passed around piece of knowledge – in the group, this is known. Impunity is a social bond.

Sutherland, however, is not concerned so much with class as with his theory, which, remember, is in opposition to the ruling criminological theories of the time – and of now. Criminology has not changed that much, and if Hilary Clinton was comfortable talking about “super predators” in the 90s, and the NYT opinion page is a reliable source for talk about the “underclass” now, it is due to this paradigm.

Sutherland, thus, turned to the upperclass. He compiled a list of the seventy largest publicly traded corporations, and went over 45 years of court records. Here’s what he found:

"This tabulation of the crimes of the seventy largest corporations in the United States gives a total of 980 adverse decisions. Every one of the seventy corporations has a decision against it, and the average number of decisions is 14.0. Of these seventy corporations, 98 percent are recidivists; that is, they have two or more adverse decisions. Several states have enacted habitual crimlnal laws, which define an habitual criminal as a person who has been convicted four times of felonies. If we use this number and do no limit the convictions to felonies, 90 percent of the seventy largest corporations in the United States are habitual criminals.”

 

 

Now I have to admit something. I have rather extended Sutherland’s original point. Sutherland really believed that criminal behavior is taught – one thief teaches another. My more fuzzy interpretation is that within a group, what is taught is one’s identity as not the kind of person who commits crimes. It is this which is often the preface to corporate crime, as well as to the judicial and legislative response to crime.

I’d like to mix this take from Sutherland with Orlando Patterson’s notion of “social death”, which is the way in which Patterson wants us to think about slavery. I think that if we think of a social hierarchy as a matter of apportioning social death – of identities being created, in the eyes of judges and legislators, out of some fraction of social death – we have a sense of what inequality, the fundamental inequality that practically grounds law and order in the “democracies” that arose in the 18^th and 19^th centuries, is about.

That inequality is lied about – in fact, massively lied about. The one place equality supposedly rules is before the law. Nobody is above the law. All are equal before the law. Etc. This is all, frankly, bullshit. Bullshit, in journalistic and pundit-speak, is called an “ideal”. We fall short of the ideal, from this p.o.v., but we keep striving. In fact, though, we don’t fall short of the ideal, the ideal is kicked to the curb in our practical socio-economic life as an impediment to order, and is clubbed to death by the cops if it gets up on its hind legs and protests.

White collar crime, I’d argue, takes white collar enablers.

Let’s use an example, a plain vanilla example. Let’s use Allied Signal. Here’s a Dead Kennedys song about the Kepone Factory case, whichfills in the basic facts.

Allied Chemical made a contracting arrangement with a company named (amazingly) Life Sciences Products. As you would expect, when a corporation names something life sciences, it is all about producing deadly toxins -and so it was with this small factory in Hopewell, Virginia. It made kepone, an insecticide used on fire ants. The toxic ingredient in kepone is chlordecone. It is a very water soluble substance, meaning that it is rapidly spread throughout the organic body. It is a neurotoxin, and one of the rare pesticides which, apparently, exhibits in rodents like it exhibits in humans. Here’s a list of what overexposure can do to humans: nervousness, tremors, chest pains, weight loss, blurred vision, deterioration of fine motor skills. The children of pregnant women exposed to it also experience motor skills deterioration which seems to persist. It is left as an exercise to the reader to compare these effects to crack, which so shocked our legislatures in the 80s that they instituted a witchhunt against (African-American) women who smoked crack.

Life Sciences Products set up their factory and produced the world’s kepone, on a contract from Allied Chemical, from 1974 to 1975. Here’s a description of what was going on in the kepone factory:

“There were usually about 20 men a day working for about $3.75 an hour at the Life Sciences plant over the busy two shifts. Overtime pay was easy to come by, and turnover was high, probably because of the health problems. The workers talked among themselves about their symptoms — including involuntary shaking, vision problems and joint pain — suspicious that the chemical was causing it. But the factory owners were almost never there, so there was no one to ask about it. Most of Life Sciences’ workers weren’t college-educated and had families to support — the job paid too much to quit.”

The men were not equipped with any protection from the kepone – no respirators, no gloves. None were, of course, required.

“Doctors and others accused the men of being drunks. “They thought we was alcoholics,” Dykes [a worker there] remembers. “You know how somebody [goes] into DTs? They accused us of that, said we were nothing but alcoholics. Then the state … pulled those blood tests and found those high levels of Kepone in us.”

All good and profitable things come to an end. Life Sciences made about 3 million pounds of the stuff, and about 200,000 pounds got into the surrounding environment, including the James River.

“After quick meetings with a state deputy attorney general, the next day, July 24, 1975, the Life Sciences plant was closed by order of the state Health Department. At around the same time, the Hopewell sewer system malfunctioned, sending raw sewage into the James River. Some mystery chemical was preventing solid waste from breaking down in the sewage systems’ digesters, special tanks that accelerated decomposition of solid waste. The situation was later thought to be caused by excess Kepone being dumped down drains by Life Science. State Water Control Board officials had already found massive amounts of Kepone in the Hopewell sewage system in winter 1974, but nothing was done about it. (Besides dumping excess Kepone into the sewage system, Life Sciences workers also disposed of it by dumping it in a big hole in a nearby field, Dykes says.)”

Of course, closing down the James River, preventing fishing, and poking around the neighborhood of Hopewell, looking for shakers, was bad for business. Even worse, this being the seventies, the government even prosecuted the company.

So what is a company like Allied Chemical to do?

Well, it had to operate on two fronts. Technically, in the courts, it had to make sure that it wasn’t charged with anything criminal – the way an individual who poisoned his neighbors would be charged with something criminal. And it had to make the fines it would be assessed go down. On the other front, it had to find scientists to pooh pooh the toxicity of kepone. That was the easier task. Any scientist who wants to live the good life – in academia and out – had best accommodate pesticide companies. Otherwise, your grants tend to get the shakes – like a person poisoned by kepone – and wither away.

In the first stage of the court spectacle, a “respected judge”, Robert R. Merhige Jr. , finally assessed a fine of 13.2 million dollars. This was considered a wickedly high sum. In the second stage of the court spectacle, Judge Merhige ruled that two Allied execs charged with felony (a conspiracy to disguise what was going on) were innocent of the charges. He allowed Allied to plead no contest to 1000 charges against them.

There was a conference about the case twenty years afterwards, and the Judge talked rather frankly about the whole thing. It is a fascinating document, especially given the theory that crime involves a group that learns to commit crime through a complicated exchange of symbols and setting of expectations. This is what Merhige said:

“I explained to the people (who didn't need explanation) it was a corporation that we had and that it was tantamount to a guilty plea. In any event, they were found guilty of 940 counts. Then I got a presentence report, as I was supposed to do. It turned out that Allied, and I said this from the bench, had been a pretty good corporate citizen in Virginia. They had done a lot of good. They were not bad people, but there were a couple of people there who took short cuts and were throwing all this dirt like they owned the James River and they poisoned it. At the same time the state had some kind of a claim against them. While I was waiting for the presentence report, other suits were developing, about fifteen or sixteen of them. We thought the original group of people who had been allegedly injured were horribly injured. There were reports that their reproductive capacity had gone. In any event, the case was settled well before we realized or got the reports from the doctors that the injuries were nowhere near as bad as we had first anticipated, thank God. That was one of the happy things.”

The pretty good citizen part is crucial. It is unexplained, but we can sort of suss it out: they had executives in the Virginia area who were white, who paid their taxes and sent their kids to good schools, and probably – some of them – coached little league.

To use Aaron Persky’s invaluable phrase: to jail people like that or throw them out of work would have a “severe impact” on them. And, after all, the workers at the factory where all this dirt was being produced made 3.25 per hour, and surely did not suffer too much if they went through a modest period of blindness, shakes, pain and the like. Might have been unable to find work, but those kind of people – well, that is where you find your alcoholics and freeloaders.

In the event, the 13.2 million was for the suckers. Merhige eventually cut it down to 5 million. And to keep that money from going to Washington, and to benefit the James River fishermen, Allied set up a trust. With the finest people on board!

“I asked Mr. Cummings to get on because I knew he was thoroughly familiar with the case, and I didn't want any of the funds used to help Allied buy off their civil liabilities. He accepted. As I recall, I appointed Judge Henry McKenzie, who was an avid sportsman and very much interested in our environment; Admiral Ross P. Bullard, who was the Coast Guard Admiral in charge of the navigable waters around the Chesapeake Bay and the James River, so he was thoroughly familiar. Then I was fortunate enough to get Sydney and Frances Lewis, whose name may be familiar to you, who knew how to spend money from what I read in the paper. Then finally a banker. I thought we needed a banker. George Yowell accepted it. They were a great board.”

As a p.s. to this story: the 8 million dollars Allied donated to the environmental trust was not an entirely bad deal for Allied, as they took a 4 million dollar tax deduction for it. All is well that ends well in the world of white collar crime.