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Halting the Senseless Civil War Against White-Collar Offenders: 'The Conduct Undermined the Integrity of the Markets' and Other Fallacies

46 Pages Posted: 10 Mar 2017  

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Jean Jacques Du Plessis

Deakin University, Geelong, Australia - Deakin Law School

Jaclyn Silver

University at Buffalo, SUNY

Date Written: August 1, 2016

Abstract

White-collar offenders understandably attract a significant amount of resentment and animosity. They often make large profits through cheating the financial system. The antipathy the community feels towards these offenders has resulted in increasing tough sanctions being meted out to them. In the United States, it is not uncommon for white-collar offenders to be sentenced to imprisonment for over a decade. This approach is fundamentally flawed. It is an illustration of collective community venting prevailing over sound evidence-based policy. This Article focuses on white-collar offenders who cheat the stock market. We argue that the reflexive unabated practice of increasingly harsh penalties for offenders who commit insider trading and market manipulation offenses has resulted in the community punishing itself by directing scarce public resources into the prison industry and away from demonstrable social goods in the form of education and health, without any corresponding benefit to the community. The two main reasons for imposing harsh sentences on market cheats are the desire to deter others from committing similar offenses and to maintain the integrity of the markets. In this Article, we demonstrate that these rationales are flawed. The weight of existing empirical data establishes that long prison terms do not deter people from committing similar offenses. We also examine the impact of high profile market offenses on the value of shares. The article contains an empirical analysis regrading whether there is a link between white collar offending and the integrity of the markets (which is an assumption made by courts). The study shows that there is no demonstrable link between major stock market crime and a lowering in the value of the market. The value of the stock market does not normally fall in response to high profile financial market offenses. This Article argues that the civil war against white-collar offenders should stop. The humanistic toll on white-collar offenders (as a result of being subjected to disproportionate punishment) and the financial burden on the community stemming from the burgeoning cost of imprisonment has already produced far more too much self-inflicted harm. Imprisoning less white collar (and other fraud) offenders will assist to ameliorate the incarceration crisis in the United States while at the same time ensuring that proportionate penalties are imposed on such offenders. It will also hopefully provide the impetus for more wide-ranging evidence-based reforms to the sentencing system, which has resulted in more than two million Americans being incarcerated—the highest in history.

Keywords: Insider trading, sentencing, reform

JEL Classification: K14

Suggested Citation

Bagaric, Mirko and Du Plessis, Jean Jacques and Silver, Jaclyn, Halting the Senseless Civil War Against White-Collar Offenders: 'The Conduct Undermined the Integrity of the Markets' and Other Fallacies (August 1, 2016). Michigan State Law Review, 2016. Available at SSRN: https://ssrn.com/abstract=2930896

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Jean Du Plessis

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

Jaclyn Silver

University at Buffalo, SUNY

12 Capen Hall
Buffalo, NY 14260
United States

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