Criminal Affirmance: Going Beyond the Deterrence Paradigm to Examine the Social Meaning of Declining Prosecution of Elite Crime

Mary Kreiner Ramirez

Washburn University - School of Law

April 13, 2012

Connecticut Law Review, Vol. 45, No. 3, 2013

Recent financial scandals and the relative paucity of criminal prosecutions against elite actors that benefited from the crisis in response suggest a new reality in the criminal law system: some wrongful actors appear to be above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their incumbency in power results in massive deadweight losses due to the distorted incentives they now face. Further, this undermines the legitimacy of the rule of law and encourages even more lawlessness among the entire population, as the declination of prosecution advertises the profitability of crime. These considerations transcend deterrence as well as retribution as a traditional basis for criminal punishment. Affirmance is far more costly and dangerous with respect to the crimes of powerful elites that control large organizations than can be accounted for under traditional notions of deterrence. Few limits are placed on a prosecutor’s discretionary decision about whom to prosecute, and many factors against prosecution take hold, especially in resource-intensive white collar crime prosecutions. This article asserts that prosecutors should not decline prosecution in these circumstances without considering its potential affirmance of crime. Otherwise, the profitability of crime promises massive future losses.

Number of Pages in PDF File: 67

Keywords: discretion, prosecutors, criminal punishment, financial crisis, social meaning, expressiveness, elite crime, fraud, criminal law, bailouts, law and economics, law and society

JEL Classification: K42, K13, K22, P10, G18, G21

Open PDF in Browser Download This Paper

Date posted: April 15, 2012 ; Last revised: March 13, 2013

Suggested Citation

Ramirez, Mary Kreiner, Criminal Affirmance: Going Beyond the Deterrence Paradigm to Examine the Social Meaning of Declining Prosecution of Elite Crime (April 13, 2012). Connecticut Law Review, Vol. 45, No. 3, 2013. Available at SSRN: https://ssrn.com/abstract=2039785 or http://dx.doi.org/10.2139/ssrn.2039785

Contact Information

Mary Kreiner Ramirez (Contact Author)
Washburn University - School of Law ( email )
1700 College Avenue
Topeka, KS 66621
United States
Feedback to SSRN

Paper statistics
Abstract Views: 1,123
Downloads: 121
Download Rank: 176,611