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Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations Sanford H

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Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations Sanford H Berkeley Law Berkeley Law Scholarship Repository Faculty Scholarship 1-1-1962 Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations Sanford H. Kadish Berkeley Law Follow this and additional works at: http://scholarship.law.berkeley.edu/facpubs Part of the Law Commons Recommended Citation Sanford H. Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. Chi. L. Rev. 423 (1962), Available at: http://scholarship.law.berkeley.edu/facpubs/732 This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. THE UNIVERSITY OF CHICAGO LAW REVIEW VOLUME 30 SPRING 1963 NUMBER 3 SOME OBSERVATIONS ON THE USE OF CRIM- INAL SANCTIONS IN ENFORCING ECONOMIC REGULATIONS* SANFORD H. KADisHt HOSE who have had occasion to look for answers to the problems of the use of sanctions, taken to include the whole range of official modes of securing compliance with norms of conduct, have commonly agreed for some time now that there are few to be found.1 In view of the antiquity of the legal experience, which for the most part has always entailed the use of sanctions of one kind or another, this is a remarkable verdict. Indeed, works written at the turn of the eighteenth century by Jeremy Bentham 2 are still the basic works in the area, a sobering observation which could scarcely be made of more than a handful of subjects of inquiry. In this state of affairs it is not surprising that we are largely ignorant of the impact of the penal sanction, which is only one aspect of the larger problem of sanctions; and still less so that we know little about the use of the penal sanction in an area of relatively recent development, economic regulatory legislation. These are only sectors of a much larger unexplored terrain. Moreover, unnecessary confusion has become an ally of ignorance in im- peding understanding of these areas. Because strong ideological differences separate the proponents and opponents of economic regulation, judgments * This article stems from a talk given at the Conference on Criminal Sanctions and Enforcement of Economic Regulations, held by The University of Chicago Law School on May 5, 1962. t Professor of Law, The University of Michigan. 1 See, e.g., Tigner v. Texas, 310 U.S. 141, 148 (1940) (Frankfurter, J.); BmErrlAM, THEORY OF LEGISLATION 358 (2d ed. 1871); FRnuND, LEGISLATIVE REGULATION 339 (1932); LANDIS, Tim ADMmsIRATlvE PROCESS 89-91 (1938); ARmNS & LASSWELL, IN DEFENSE OF PUBLIC ORDER 3 (1961). 2 E.g., BrNTIlAM, INTRODUCION TO THE PRINCIPLES OF MoRALs AND LEGISLATION (1st ed. 1789). HeinOnline -- 30 U. Chi. L. Rev. 423 1962-1963 424 THE UNIVERSITY OF CHICAGO LAW REVIEW [Vol. 30:423 about the effect of penal sanctions in achieving compliance tend to turn upon judgments about the merits of the substantive regulation. Liberally oriented social scientists, otherwise critical of the case made for the deterrent and vindi- catory uses of punishment of ordinary offenders, may be found supporting stem penal enforcement against economic violators. 3 At the same time con- servative groups, rarely foes of rigorous punishment for ordinary offenders, appear less sanguine for the criminal prosecution when punishment of business offenders is debated.4 This statement of the undeveloped state of the art is by no means designed as an introduction to an ambitious effort to close the ancient gap in under- standing. Quite the contrary, it is meant rather to excuse the modest ambit of these observations. What I would like to accomplish is to outline the special characteristics of economic regulatory legislation relevant to the use of the criminal sanction; to indicate what implications they have for effective use of the criminal law; and to suggest relevant concerns in the use of this sanction beyond the goal of enforcing the specific regulatory norm. I The kind of economic regulations whose enforcement through the criminal sanction is the subject of this inquiry may be briefly stated: those which im- pose restrictions upon the conduct of business as part of a considered eco- nomic policy. This includes such laws as price control and rationing laws, antitrust laws and other legislation designed to protect or promote competi- tion or prevent unfair competition, export controls, small loan laws, securities regulations, and, perhaps, some tax laws. Put to one side, therefore, are regula- tions directly affecting business conduct which are founded on interests other than economic ones; for example, laws regulating the conduct of business in the interest of public safety and general physical welfare. Also to one side are laws indirectly affecting business conduct by their general applicability; for example, embezzlement, varieties of fraud and related white-collar offenses. 3 BARNES & TEarERs, NEw HoRIzoNs iN CRIMINoLoGY 43 (3d ed. 1959); CuNARD, THE BLACK MARKET 243 (1952); SHAw, THE CRIME OF IMPRISoNMENT 34 (1946); SunmR.AND & CRESSEY, PRINCIPLES OF CRIMINOLOGY 40-47 (5th ed. 1955). Feelings sometimes run high. See, e.g., SUTiERLAND, WIHrE CoLLAR CRIME 85 (1949): "This change in the economic sys- tem from free competition to private collectivism has been produced largely by the efforts of businessmen. Although they have not acted en masse with a definite intention of under- mining the traditional American institutions, their behavior has actually produced this result." 4 See the statements submitted by the American Bar Association and the Association of the Bar of the City of New York in Hearings on S. 996, 2252-2255 before the Subcommittee on Anti-trust and Monopoly of the Senate Committee on the Judiciary,87th Cong., 1st Sess. 97, 100 (1962). See also the observations of Senator Hruska during the hearings in disap- proval of the proposals to tighten criminal penalties. Id. passim. Counsel for the defendants in the Electrical Equipment cases made the interesting observation: "What is to be served by prison sentences ? ... If the Government regards prison sentences as a means of deterring future violations of this type, then it has adopted a penological theory that was discarded 100 years ago." Wall Street Journal, Feb. 7, 1961, p. 15, col. 3 (midwest ed.). HeinOnline -- 30 U. Chi. L. Rev. 424 1962-1963 1963] CRIMINAL SANCTIONS FOR ECONOMIC REGULATIONS 425 The class of regulations so defined possesses several characteristics that have a direct bearing upon the uses and limits of the criminal sanction as a means of achieving compliance. The first is the very feature suggested as the identifying characteristic of such legislation; that is, the nature of the interest protected. Certainly the use of criminal sanctions to protect interests of an economic character is not a contemporary departure. The extension of the classic larceny offense by courts and legislatures to embrace fraud, embezzle- ment and similar varieties of misappropriation that threatened newly develop- ing ways of transacting business is a well documented chapter in the history of the criminal law. 5 Indeed the process continues today.6 But there is an im- portant difference between the traditional and expanded property offenses and the newer economic regulatory offenses-a difference reflecting the shift from an economic order that rested on maximum freedom for the private en- trepreneur to one committed to restraints upon that freedom. The traditional property offenses protect private property interests against the acquisitive be- havior of others in the furtherance of free private decision. 7 The newer offenses, on the other hand, seek to protect the economic order of the community against harmful use by the individual of his property interest. The central purpose, therefore, is to control private choice, rather than to free it. But the control imposed (and this too has significance) is not total, as it would be in a socialistic system. Private economic self-determination has not been aban- doned in favor of a wholly state regulated economy. Indeed, the ideal of free enterprise is maintained, the imposed regulations being regarded as necessary to prevent that ideal from consuming itself.8 Whether the criminal sanction may safely and effectively be used in the service of implementing the large- scale economic policies underlying regulatory legislation of this kind raises fundamental questions. A second relevant feature of these laws concerns the nature of the conduct restrained. Since it is not criminal under traditional categories of crime and, apart from the regulatory proscription, closely resembles acceptable aggres- sive business behavior, the stigma of moral reprehensibility does not naturally s E.g., HALL, Tn-rFr, LAW AND SocIETY (2d ed. 1952). 6 Compare People v. Ashley, 42 Cal. 2d 246,267 P.2d 271 (1954), with Chaplin v. United States, 157 F.2d 697 (D.C. Cir. 1946). See MODEL PENAL CODE app. A at 103 (Tent. Draft No. 1, 1953). 7 Cf. HuRsT, LAW AND THE CONDITIONS OF FREEDOM 21 (1956): "Characteristically, nineteenth century criminal and tort law involved not only limitations in the interest of free private decision, but also positive regulations looking to that end. Criminal law extended its reach in the eighteenth and nineteenth centuries nowhere more conspicuously than in the law of theft. Growth of the law concerning embezzlement, theft by bailees, and the receipt of stolen goods went along with the expansion of the market economy; increased dealings at a distance, in reliance on others, and in volume created an impersonality of dealing which called for more intervention by law to secure the working minimum of reliable conduct." 8 See id. ch. Impassim. HeinOnline -- 30 U. Chi. L. Rev. 425 1962-1963 426 THE UNIVERSITY OF CHICAGO LAW REVIEW [VoL 30:423 associate itself with the regulated conduct.
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