If hotheaded online commenters ran the Justice Department, would America's prisons be full of traders responsible for the financial crisis? It is tempting to think so—that the lack of corporate prosecutions is due to a lack of will rather than a lack of way.
But convicting bankers—or any other white-collar workers whose decisions at work have ostensibly damaged the economy—is difficult because while it is easy to identify systematic wrongdoing, it's much harder to pin blame, at least in the way a court might approve of, on an individual within that system.
Sam Buell, a Duke law professor, argues in his recent book Capital Offenses: Business Crime and Punishment in America’s Corporate Age that this is no accident. The difficulties that government prosecutors face in cobbling together fraud cases against even the most nefarious executives illuminates the fact that, legally, corporations are big, fancy responsibility-diffusion mechanisms. It’s what they were designed to do: Let a bunch of people get together, take some strategic risks they might otherwise not take, and then make sure none of them is devastated individually if things go south.
In his book, Buell, who served as the lead prosecutor for the Justice Department’s Enron Task Force, sets out to soften some Americans’ lock-’em-up mentalities by providing some perspective on how the criminal-justice system works and why it works that way. I recently spoke with Buell about the anger many Americans feel about corporate crime, other potential targets of that anger, and why convicting white-collar criminals is not as straightforward as many people think it should be. Our conversation has been edited for context and clarity.