white collar crime 2: "Moving barrels at a chemical plant"

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.

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.