Benjamin Bestgen

Tropes like the “Gentleman Thief” pick up on the allure of the white-collar criminal: a person who appears respectable, educated, even charming. A worldly, clever, well-travelled sort, smartly dressed and often engaged in professions associated with social and occupational prestige: doctor, lawyer, art consultant, manager, academic, accountant, therapist, entrepreneur, military officer… consider con-artist Neal Caffrey in the TV series “White Collar” or fictional thieves Arsène Lupin and A.J. Raffles.

Crimes like embezzlement, mortgage and securities fraud, dodgy bankruptcies, false accounting or tax evasion require often a degree of professional knowledge, education or access to certain institutions or networks. Such access was and remains typically (though not exclusively) available to people from a middle or upper class socio-economic background.

Historically speaking, academic John Locker observed that Victorian society firmly connected a person’s social class, wealth and employment status with their moral backbone and social acceptability. A respectable person was considered somebody of sound moral pedigree, fundamentally honest, hence unlikely to pose a criminal threat. While some members of the lower classes could be deemed respectable people, it was thought that respectability mainly draws from the higher echelons of society.

It was acknowledged that - regrettably - members of the middle and upper classes could on occasion fall from grace, but the masses of the great unwashed were deemed the main hotbed of vice, dubious morals, poor impulse control, thus criminality.

The white-collar criminal therefore caused confusion: is there such a thing as a “respectable offender”?

Essentialism

Criminality used to be perceived as a fixed character disposition and part of the core essence of a person. Individuals “of good breeding” were considered less likely to become criminals. Breeding and criminality was also a popular topic in eugenics and early intelligence research: in Buck v Bell 274 U.S. 200 (1927), famous US Supreme Court Justice and legal philosopher Oliver Wendell Holmes opined that the forced sterilisation of “imbeciles” would be better for all the world before society, acting in the public interest, would have to “[…] execute degenerate offspring for crime […]”. Connecting social class and genetic heritage with respectability and crime-risk was an intuitive explanation for many, no matter how erroneous with hindsight.

Locker notes that legal debates of Victorian times contained a fair degree of moral discourse on the character of the accused: when a white-collar offender, i.e. an ostensibly respectable person of appropriate social standing appeared on criminal charges, that person was either still respectable (therefore not really a criminal) or a criminal (thus not respectable). It was deemed important to determine the moral essence of the accused to come to a judgement, allowing all kinds of bias and social prejudice to enter judicial reasoning.

Sentencing respectable offenders

Looking at contemporary white-collar offences, criminologist Michael Levi finds that judges still face a dilemma: on the one hand, most white-collar crimes involve the abuse of trust, fiduciary obligations or betrayal of a privileged position and are viewed as deeply reprehensible. On the other hand, for many such offenders, the offence appears “out of character” and they have few, if any, previous convictions. Consequences of conviction are already severe, normally involving the loss of employment, reputational damage and exclusion from their profession, temporarily or permanently. Many such offenders also have a low risk of re-offending and can present letters of support from their community, vouching for their overall good character.

Perception, not law

Arguably, “respectable offender” isn’t the kind of paradox it was for many Victorian judges. Essentialism doesn’t withstand scientific scrutiny: criminality is not a character trait but behaviour caused by multiple, complex factors that made a person break the law. Respectability is fundamentally a moral and aesthetic concept – it is a judgement of social perception, not of law.

Before we decide to make the accused an outcast “in the eyes of decent, honest people”, each case must be analysed on its merits. What motivated the crime, why did the person break the law? Is the crime one that in itself denotes bad character or irredeemable disregard for trust, human dignity, community welfare? Fundamental questions, worth asking and considering thoroughly every time before passing sentence, legally and morally.

Researchers seem to agree that “white collar” nowadays denotes more the type of crime and less the social class of the perpetrator. Technology and the internet further made typical “middle-class crimes” like tax evasion, various types of fraud, corruption or embezzlement available to many more on the lower ranks of the social ladder.

Aesthetic and moral concepts are dangerous when we make them legally relevant without appreciating, and being careful about, their potential for bias and prejudice. A criminal charge, or conviction, does not and should not automatically imply the offender is fundamentally bad and dishonourable. Indeed, there are plenty of dishonourable things that are perfectly lawful to do but we wouldn’t want to shake hands with the person who does them or walk on the same pavement as them.

Lawyers know all too well that anybody, regardless of social status, can find themselves on the wrong end of the criminal legal system in the blink of an eye: one ill-considered or unlucky act or omission can be enough. If it was you, how much would you like the judge to focus on your respectability, as opposed to the law?

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.