The Department of Justice (DOJ) investigates and prosecutes various matters categorized as “white-collar crimes.” In addition to offenses committed by individuals, this term also applies to a wide range of corporate misconduct, in which an entire business organization might be liable for illegal activity. In response to criticisms that the DOJ is focusing on corporate-level prosecutions to the exclusion of individual officers, directors, or employees, the DOJ issued a memorandum in September 2015, entitled “Individual Accountability for Corporate Wrongdoing” (the “Memo”), which sets forth new policies for the investigation and prosecution of individuals. In November, it announced changes to its written policies regarding prosecutions against corporations and other business entities.
“White-collar crime” is not a formal legal term. Instead, it refers broadly to non-violent offenses that are typically financial in nature and that often involve businesses or government officials. The federal government has jurisdiction over crimes that directly affect matters placed under federal control by the Constitution. This includes bankruptcy fraud, 18 U.S.C. § 151 et seq.; and immigration fraud, 18 U.S.C. § 1546. It also has jurisdiction over offenses affecting interstate commerce under the Commerce Clause. U.S. Const. Art. I, § 8, cl. 3. This includes mail fraud, 18 U.S.C. § 1341; wire fraud, 18 U.S.C. § 1343; offenses related to organized crime, 18 U.S.C. § 1961 et seq.; and securities fraud, 15 U.S.C. § 78j.
Federal law generally includes business entities like corporations and partnerships in its definition of the word “person.” 1 U.S.C. § 1. This enables federal prosecutors to pursue both individuals and business entities. The prosecution of an individual, according to the DOJ, has several advantages over prosecuting an organization. The Memo identifies several, including “ensur[ing] that the proper parties are held responsible for their actions” and “promot[ing] the public’s confidence in our justice system.” The public might find it more satisfying to see a picture or footage of an individual in handcuffs for some financial crime, but we must be careful to consider how much involvement in an alleged crime should lead to criminal liability. Some white-collar offenses occur on an organizational level, where few individuals have enough involvement to meet the legal requirements for guilt.