The man who coined the term "white collar criminal": Edwin H. Sutherland

Like Karl Marx, contemplating wood theft in Germany in 1846 and being struck by the fact that the crime was invented, in contradistinction from the way he was taught law operated, Edwin H. Sutherland was a criminologist/sociologist who, in the 1930s, began looking at crimes committed by people other than the urban marginals and degenerates who were the usual object of criminological interest, and he was struck by the inability of theory to capture either their practices or motives. 

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 19^th 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 IUnited States are habitual criminals.”

Aye, but the kicker for some of Sutherland’s opponents was the conditional phrase, “if we do not limit the convictions to felonies.” Which gets us more into the question of class and power.

To be continued.

angels do dance on the heads of pins

Egon Friedell is perhaps less famous for his writing than for having committed suicide as the SS pushed in his door in Vienna in 1938. He was a feullitonist - which we now call "creative non-fiction", a term which sounds like it was made up by a bored bureaucrat - and a generalist, a flaneur philosopher, an amateur. How I love amateurs! He did take on a huge task – writing the history of the Neuzeit, of modernity itself - that makes him hard to, well, encompass. I confess I haven't read the five volumes of this. But he was also one of the Viennese wits – the greatest of whom was Karl Kraus - who understood that the secret of language was flair. Although Kraus would probably thrown heaps of scorn on that notion - for him, the secret of language was ethics.

The flavor of that kind of wit is shown in this aphorism.

“Materialism. I once wrote the following: Man is an eternal God-seeker. Whatever else one may say about him is secondary. Everything that he does and undertakes flows out of this source.

But the printer printed this: Man is an eternal Gold-seeker… This error was really and truly from the devil; and not only the devil, but the special devil who controls not only printing but the writing, and not only the writing but the brain of the writer, and not only the brain but the soul, but the whole world. In brief, the tragedy of this erratum was – that it wasn’t one.”

Isn’t that lovely? In fact, this erratum crystalizes the whole of that Marxism that Walter Benjamin (and myself, the merest pipsqueak next to Walter, but still), Ernst Bloch, and a not insignificant segment of the interwar Left proposed with the appropriate indirection. The sentence as written and the erratum as printed are both, in this view, true. And yet, of course, they negate each other.

How very very Viennese to make this point, this juncture of negative theology and dialectical materialism, come down to one letter interjected by the printer’s devil! For angels really do dance on the heads of pins – it is the whole point of angels to do so.

A Pisgah view of Marianne Moore

Elizabeth Bishop summed up a deal of poetry when she wrote this sentence in an essay about Marianne Moore: “It is annoying to have to keep saying that things are like other things, even though there seems to be no help for it.”
Tapping into that annoyance – playing with it, exasperating it, flaunting it, exhausting it – seems like the modernist project. Or maybe it seems like the project of Marianne Moore, who was a modernist as well as an eccentric. Or perhaps she would claim she was centric, had a sense of centers in a world that was full of the cockeyed and the unbalanced, a world of people who would neither properly see what they made nor what they destroyed, but was given to interminable futzing around.
I’ve been going through Marianne Moore’s Collected Poems, and, shamefully perhaps, I’m finding I like her first versions of her poems better than her second versions. She was a notorious suppressor and changer.
It pleases me that Marianne Moore, in contrast with the bigots who are the big names of American 20th century poetry – Eliot, Pound, Stevens – did not throw in her lot with bigotry. At least as much as one could refrain from throwing in one’s lot with bigotry when bigotry has built so much that we live and move among, when it butters the pathway of every white American middle class life still. So in her Virginia Brittanica poem, I was pleased to meet these lines:

The slowmoving glossy, tall
quick cavalcade
of buckeye-brown surprising
jumpers, the contrasting work-mule and
show-mule & witch-cross door & “strong sweet prison”
are part of what
has come about, in the Black
idiom, from advancing backward
in a circle; from taking The Potomac
cowbirdlike; and on
The Chickahominy
establishing the Negro, opportunely brought, to strength-
en protest against
tyranny.”

Of course, Moore’s preserved faith in Lincoln’s Republican Party ethos has its twists. The phrase “opportunely brought” for instance, which surely refers to the recruitment of black soldiers in the Civil War, has a backreference to the original bringing that leaves an ambiguity in the mouth. Opportunely for whom? To be fair, this is the central moral problem around which the poem, with all its beauty, stalks. And what is this “cowbirdlike”? Yet I like best the reference to advancing backwards in a circle. Because the poem itself is about that advance that is also retreat, that invasion that is also native. There’s a delicate footing between plants – Moore’s sort of inhabited observation, as Elizabeth Bishop noticed, makes description a sort of narration, a sort of biography in miniature – and peoples, between natives and invaders, between those who colonized and those brought over to make the colony, as the naturals are driven back, taken from. Moore is very good at this kind of thing, but I find I really have to read her poems twice just to know where I was going – and that of course is what writing is, for a poet, it is going somewhere, even if that means advancing backwards in a circle.
I love this sly stanza – or not exactly a stanza, borrowing out of poetics the words for Moore’s units is a way of wrong-footing yourself – that tells so much about the South I know.
Terrapin
meat and crested spoon
feed the mistress of French
plum-and-turquoise-piped chaise-longue;
of brass-knobbed slat front-door and
everywhere open
shaded house on Indian-
named Virginian
streams, in counties named for English lords.

“Indian named Virginian steams, in counties named for English lords” – such is the balance, or lack of balance, in this hard country with the soft accent, the meanness and the courtesy.

Unamuno's nervous tic

Deleuze missed a trick in his book, The Fold. 

Although ultra appreciative of the philosophical anecdote, Deleuze apparently did not know about Unamuno.

Unamuno was an inveterate folder of paper. Here's an anecdote from one of his obituaries:
In the course of a visit that Andre Corthis made to Unamuno in Salamanca, she saw, perched on the edge of the bottle of ink on his desk, a vulture made of paper that was so finely folded with such delicate art that she couldn't withhold her admiration. 

"I made that," he said.

And Miguel de Unamuno explained that he had a mania for folding things, it was his favorite distraction. While siting in his chair giving his courses, his fingers never ceased making little objects or animals out of paper. A science that he humorously called cocotology."

I like to think that Unamuno, the committed anti-fascist, the man who was expelled from Spain in a military plane under one dictator and who denouced Franco at the end of his life, made a specialty of folding small bits of paper. There is something very... sweet about that. I would like to think that Paul Valery had, as well, some very cute nervous tic.

What we owe Monica Lewinsky

What we owe Monica Lewinsky

An article that appeared in the Politico yesterday stirred people up. Written by Alicia Munnell, it presents a case for thinking that retirement, that dream which rests upon the foundation of social insurance – social security and medicare – is over for the millennials, who should just plan to work until they are seventy, and then I guess go off to the euthanasia center.

The article reminded me, once again, of one of my strongest beliefs: that we as a nation owe a big thanks to Monica Lewinsky.

By all accounts, Bill Clinton came into his second term determined to care though a very ruthless neo-liberal plan. The era of big government was over. And part of it he succeeded in cramming through. He signed into law “reforms” that deregulating mortgages and led to the great crash of 2008. And he got rid of #GlassSteagall, which made our response to 2008 concentrate on saving the great too big to fail banks.

But the big piece de resistance, for the Clintonites, was privatizing social security. In November, 1996, Mother Jones had a big article about the drive among third way dems to privatize social security, quoting such stalwarts as members of the Social Security Advisory Council who were all about “reforming” SocSec, and Dems who were talking about Clinton in a “Richard Nixon goes to China” mode becoming a real statesmen and screwing us for generations to come. The vice president of the Democratic Leadership Council – remember that Trojan horse – were quoted as being cautiously optimistic that Clinton would lead the way on “reform”.

But the state of play in 1996 changed drastically on January 17, 1998, when Drudge reported that Clinton was being investigated for an affair with an intern. Yes, Monica Lewinsky! And that day did more than anything else to turn the tide. It shows that one person can make a difference.

The scandal did not keep Clinton from happily signing mortgage legislation that led to disaster, or dissolving the regulatory structure that had kept American banks from the gorge and crash syndrome to which they are inherently heir. But these pieces of legislation, however bad, are not as bad as the Cato-touted reforms that Clinton’s Social Security “advisors” were hoping to jimmy through.

In the aftermath, in 2001, Clintonite Alicia Munnell laid out, in a Brookings Institute paper, what was probably cooking in the white house in 1996-1997. It has some big gems, for instance, a confident assertion that government pension funds show how awesomely private investment for public good can be managed. This has, to say the least, not aged well. And it has smooth as butter prescriptions that went into Bush’s own attempt to privatize social security:

“One answer is to limit the size of a fund, creating new funds that are separately (and privately) managed once the public fund reaches a certain size. This practice is already used in Sweden, which has six funds to manage accumulated surpluses in its partially funded public pension system. The government has put limits on how much of a single firm—and of the total market—can be owned by individual funds and by all the funds collectively.

But how big is too big? One standard would be to limit the size of any one Social Security investment fund to roughly the size of the largest private investment firm. In 1999 Fidelity was the largest, with 3.3 percent of domestic equities, followed by Barclay’s Global Investors with 2.1 percent and State Street Global Advisors with 1.6 percent. Once a Social Security investment fund reached, say, 3 percent of the market, it would not receive any new investment funds from Social Security surpluses. Instead, the government would establish a new investment fund, again privately managed, to receive new funds. A somewhat more convoluted mechanism for limiting size would involve distributing Social Security funds among fund managers in proportion to 401(k) contributions.”
How sweet the sound of mixing 401k, God’s worst pension substitute, and Social Security!

So here’s to you Monica. We owe you this one.

The rule of law, or being screwed up the wazoo by the Supreme Court

James Fitzjames Stephen, Virginia Woolf’s uncle, was nothing if not ferociously direct. Thus, in his book on the Criminal Law of England, he tells us why the subject is of interest:

“Its object is to give an account of the general scope, tendency, and design of an important part of our institutions, of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, and otherwise torment their fellow-creatures.”

This is a blunt disposition of the case, and in a satirist’s hands, or a Tolstoy’s, a condemnation of the system: but for Stephen, it is rightly how things are.

And, really, for most of us. We might not be down for the cold blooded executions, but we are all down for the enslaving and tormenting. When we blather on about the rule of law, it is on these foundations of meted out pain that we are arguing.

It is, of course, a grand phrase: the rule of law instead of the rule of men. The law, here, transcends the merely personal, the merely historical. It is the one thing to which we all bow. And in bowing, we are all equal.

But the reality is not so grand. Under cover of the rule of law, in the U.S., the courts and their minions, police, prosecutors, etc., have generally acted to protect the strongest and bring down the weakest. They are the ultimate line of defense for the plutocrats. From the slaveowners who penned the bill of rights to the present Supreme Court, which routinely deform them, there is a community of spirit.

For liberals, this is a painful story. That is because of our collective memory of the Court as an instrument for liberalizing our social relationships, for lifting the yoke from us: this was the effect of the Warren Court and even of Nixon’s court, the Burger Court, at least to an extent. But the very power that is given to the court to make these changes allows a variability of change – really, a tyranny by lifetime serving judges – that has rained down injustice upon us, from the Dred Scott decision to the arbitrary giving of the presidency to George W. Bush like it was a golfing trophy at a country club.

The rule of law is always and also the rule of men – and what men!

The last time the Supreme Court was fundamentally questioned in a presidential campaign was in 1924. Robert Lafollette’s campaign platform proposed, among other things, to initiate a Constitutional amendment giving the Legislative branch final say so on the constitutionality of law – not an appointed group of judges representative of the political coloring of the president who appointed them, for the most part. This platform drew attacks from the Republican candidate, Calvin Coolidge, and the Democratic candidate, John Davis. The New York Times thought it was just awful.

The Literary Digest of September, 1924, has an interesting passage concerning the whole thing:

[It] was another manifestation of the campaign policy, common to the Coolidge and La Follette camps, to try to put the

Democrats on the side lines and make the fight Coolidge versus La Follette, Republican versus Progressive, or, as President Coolidge hopes the issue will take form, Americanism versus radicalism. Communism and Socialism."

The La Follette attitude toward the courts appears in two official statements. The platform presented by the La Follette group at the Republican Convention contained this plank:

We favor submitting to the people, for their considerate judgment, a constitutional amendment providing that Congress may, by reenacting a statute, make it effective over judicial veto. We favor such amendment to the Constitution as may be necessary to provide for the election of all Federal judges, for fixed terms not exceeding ten years, by direct vote of the people."

Lafollette’s party explained itself when they broke away from the Republicans and ran as Progressives like this: "Abolition of the tyranny and usurpation of the courts, including the practise of nullifying legislation in conflict with the political, social or economic theories of the judges. Abolition of injunctions in labor disputes and of the power to punish for contempt without trial by jury. Election of all Federal judges without party designation for limited terms."

This anti-court strain in the progressive tradition waned along with the confidence in the power of the people, via elections, to decide on things. The New Dealers who took up much of Lafollette’s platform were much more confident in the power of technocrats – the brain trust – to make policy than were the earlier generation of progressives. Although Roosevelt famously took a whack at the court by trying to expand it, he never considered any radical undermining of its Marshallian foundations.

We’ve been living in that vacuum with regard to the court for some time. It hasn’t been a happy time for liberty, or for the working people of the United States. The myth that the Court is protecting the “Constitution” – which is a lousy document that is discarded whenever it gets in the way of an establishment program (for instance, the program of perpetual war at the prerogative of the president) – is getting less and less believable.

This should be brought up again. Or to put it Simon and Garfunkle style: Where’s you go, Bob Lafollette, the nation turns its lonely eyes to you – oo oo oo.

what is it like to be a voter?

Neo-liberalism's attempt to shake the existential edge off politics is a futile and ultimately damaging enterprise, although you wouldn’t know it from the thumbsuckers. Every new election, every new populism, proves it. The left, when it is healthy, and the right, when it is not, both know that politics is all about dread and ecstasy.

That politics might be an existentialist errand is very much part of what I take to be the salient characteristic of contemporary election-based democracies. The common lament of editorialist and well heeled country clubber alike is that election based democracy allows those without an intelligent grasp of the issues, at least if that grasp is defined in terms of having informed opinions about policy. In our opinion, a philosophical defense of democracy has to begin with a better description of how voting functions in a democracy in the first place. What is the meaning of voting? What is it about? I propose that we look for the answer to that question using Thomas Nagel’s essay, What is it like to be a bat? 

Now of course Nagel’s essay doesn’t seem like it is about politics at all. It is about the narrow set of questions that are posed by the cognitive sci school to frame the problem of consciousness. And, famously, Nagel suggests that these questions do not pose the central problem of consciousness at all : “…the fact that an organism has conscious experience at all means, basically, that there is something it is like to be that organism.”

What it is like questions grab hold of subjectivity, rather than deductive activity:

“We may call this the subjective character of experience. It is not captured by any of the familiar, recently devised reductive analyses of the mental, for all of them are logically compatible with its absence. It is not analyzable in terms of any explanatory system of functional states, or intentional states, since these could be ascribed to robots or automata that behaved like people though they experienced nothing.2 It is not analyzable in terms of the causal role of experiences in relation to typical human behavior—for similar reasons.3 I do not deny that conscious mental states and events cause behavior, nor that they may be given functional characterizations. I deny only that this kind of thing exhausts their analysis. Any reductionist program has to be based on an analysis of what is to be reduced. If the analysis leaves something out, the problem will be falsely posed. It is useless to base the defense of materialism on any analysis of mental phenomena that fails to deal explicitly with their subjective character. For there is no reason to suppose that a reduction which seems plausible when no attempt is made to account for consciousness can be extended to include consciousness. With out some idea, therefore, of what the subjective character of experience is, we cannot know what is required of physicalist theory.”

The defense of the participation of the people in the government has traditionally been couched in terms of their education and their information about the policy issues. The Kantian dictum about enlightenment -- that it is the people treated as adults, or grown into their adulthood -- is often taken to be about the people educated, and thus pondering the policy blueprint. Relieved of their superstitions by some suitable immersion in the bath of facts. However, to me the "adulthood" does not stand for a list of facts known. It stands for a complicated system of controls on behavior, for the capacity for a range of emotions, for imagination, for empathy, etc., etc. In the same way, defining the voters participation in the government in terms of checking things off the list of things known is much like defining the consciousness solely in terms of deductive or inductive mechanisms. It makes voting a test – but not for the candidate. Rather, for the voter.

The picture I am against is like this: your educated voter looks up candidate x’s view on the issue of lowering or raising tariffs on the import of bananas, and looks up candidate y’s view of same, and – deciding which view accords with his own intelligent view of banana importation – votes accordingly. Votes, in fact, can be reduced to a digital function: for/not for.

I think this is a bare and distorted view of what voting is about, and how it functions in a democracy. The voter, on this account, merely confirms or disconfirms views represented by x and y. On this basis, we think, democracy has no real strength that would explain not only its survival, but its survival in competition with its rivals of all sorts. It would simply be a system with a lag in the decision making process, called an election, as opposed to say tyranny, where the lags are unpredictable, and are called the hysterical fits of the ruler. Since it is unlikely that any voter has the amount of knowledge to make a competent judgment about not only the banana import issue, but, say, subsidies to the ethanol industry and car safety standards and the proper foreign policy to assume towards Gabon, if election based democracies depended on a set of voters with competent listable knowledge alone, I wouldn't give it much chance of survival.

The question of success, here, is often obscured by the rhetoric of morality. Democracies are supposed to possess some moral superiority. I have my doubts about this. Any time a political system becomes dominant, you find intellectuals busy justifying the system as morally superior. So far, the most long lasting governmental arrangement known to man involved the ruler marrying his sister and being acclaimed, at some point or another, a god, before his dead body was embalmed and interred under a certain tonnage of rock. In my opinion, this doesn’t sound like the height of morality, although it makes for very impressive postcards. We think that the success of democracy, given the success of other governmental arrangements in the past, probably does not have to do with its moral status, and probably has more to do with structural qualities it possesses.

This is the reason I don't think voting is well described by the Lockean model. I don’t think voters are like that. I prefer the Nagel voter. The Nagel voter votes, of course, in the for/against mode. But the Nagel voter votes from what it is like to be him or her. This is why the motives of the Nagel voter aren't simply confirming or disconfirming, and why the appeal to him or her is going to be about the emotions around the issues, or the issues as passions. And why the idea that is sometimes bruited about by liberal commentators about injecting ideas into a race and the scandal of not doing so is wrong – not wrong morally, but wrong organizationally. The struggle to gain the vote, which is the bloody ghost behind the vote, is surely not summed up by electing some suited lame politico, but is much more like another bit of dialogue in an interminable family argument. Family arguments are as heated as they are because they address precisely the question of what one is like. What am I like, how am I recognized, why am I not, why don’t I feel like myself in the family, why do I feel like myself in the family, etc.

Just as I don’t want to throw deduction out as the enemy of consciousness, we don't want to entirely junk the image of the well informed voter. But eventually, the voting input is about what it is like to be an Irish ex-cop in New York city, or what it is like to be a embittered  writer in Paris, France, or an old black woman beaten up by the police for no reason at a traffic stop in Atlanta, Georgia, and so on.

Of course, this is an approach to voting that takes into account only one side of it. The other side to voting is deductive, by its very nature. Because what is voting? Voting is additive. Voters may vote out of their tacit knowledge about what they are like, but in the end it is the side with more votes that wins. It is out of this tension, endlessly rocking, that democracies exist.