The Crimes of the Powerful and the Globalization of Crime

Gregg Barak Professor of Criminology and Criminal Justice at Eastern Michigan University and the former Visiting Distinguished Professor in the College of Justice & Safety at Eastern Kentucky University. E-mail: .

Abstract

Inspired by the theme and written for the Seminario Internacional de Direcito, Democracia & Susten- tabilidade, 13-14 de agosto de 2015, IMED, Passo Fundo, this article examines the effects of the crimes of the powerful as represented by multinational corporations, state organizations, and non-state actors. The essay sets out to exhaustively define the crimes of the powerful while providing an overview of the globalization of crime and victimization. Additionally, as a matter of discussing the relations of the globalization of crime, capital, and social control, I summarize the primary lessons learned from The Routledge International Handbook of the Crimes of the Powerful (2015) that I was the Editor for and contributor to. Finally, I conclude by responding to the dialectical question of whether the current economic recessions, contractions, and unchecked expansion of financial and corporate wealth are sustainable and represent a prototype of things to come or are not sustainable and represent the need for the development of alternative archetypes of change and sustainability? Keywords: Crime. Globalization. Political Economy. Powerful. Sustainable.

1 Introduction Globalization has not only enhanced the power and wealth of certain states…it has also given these states a claim of exceptionalism. That From the Preface to Globalization and Its claim has also extended to certain multinational Impact on the Future of Human Rights and Inter- corporations and Other non-state actors becau- national Criminal Justice (2015), Editor M. Cherif se of their wealth, worldwide activities, and their Bassiouni assessed the current state of internatio- economic and political power and influence over nal criminal justice, globalization, and the com- national and international institutions. For all mon good as follows: “We are living through a practical purposes, many of these multinational period of decline in the observance of and respect entities have grown beyond the reach of the law, whether national or international (ibid.). for human rights as they have evolved since the end of World War II. And we may well be witnes- Though Bassiouni and I reach similar con- sing a setback in the evolution of international cri- clusions, our arguments vary. In his edited vo- minal justice… in a curious, not to say perverse, lume, Bassiouni talks of the present state of glo- way—our globalized world is becoming more in- balization in terms of paradoxically positive and terdependent and interconnected at the same time negative effects, I talk of the co-existence of these that it is becoming less committed to the identi- contemporary outcomes of globalization in terms fication and enforcement of the common good.” of the historical contradictions of capital accu- Prof. Bassiouni, “the godfather of international mulation and reproduction in my edited volume criminal law,” also concludes that over the past as we will see throughout this essay. couple of decades: Before I launch into an overview of the social relations between the crimes of the power-

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DOI: 10.18256/2238-0604/revistadedireito.v11n2p104-114 The Crimes of the Powerful… ful and the globalization of crime I need to make Thus, the crimes of the powerful have ma- some introductory remarks. First, I have to cla- naged to avoid or escape both the criminalization rify what is meant by the phrase, the crimes of and stigmatization that should come with these le- the powerful. Next, I have to contextualize the gal and illegal violations of both civil and human state of the contemporary global economy. Sub- rights. Time and again, these powerful criminal sequently, I will present an historical and uni- activities in particular are conventionalized or fying framework for examining the crimes of the neutralized by way of alliances, negotiations, and powerful, followed by a general overview of the justifications that undermine the moralizations globalization of crime with examples from Nige- of these offenses (CARSON, 1979; PRINS, 2014; ria, Somalia, and Diego Garcia while touching on RUGGIERO, 2013). Concurrently, the legal reac- Mexico, China, and Bangladesh, as well as provi- tions to as well as the ideological rationalizations ding a more detailed case study from the United of elite offenses by capitalist state actors and other States. Next, I will highlight the lessons learned defenders of the status quo contribute to this de- from my edited volume, The Routledge Interna- moralization and to the denial of victimhood and tional Handbook of the Crimes of the Powerful liability for those harmed or injured. The tenden- (BARAK, 2015). Finally, in the context of a global cy of noncriminal state enforcement to concede to political economy, I will conclude this presenta- the organizational interests of the powerful and to tion by responding to the dialectical question of capital accumulation is as old as capitalism itself. whether the current economic recessions, con- Two illustrations of the offenses of the powerful, tractions, and unchecked expansion of financial some 150 years apart, were the habitual crimes of and corporate wealth are sustainable and repre- large manufacturers in 19th century England and sent a prototype of things to come or whether the epidemic of securities frauds by major global st these contemporary 21 century means of capital financial institutions in the United States and el- accumulation and reproduction are not sustaina- sewhere early in this century. ble and need to be challenged by alternative ar- In each of these sets of distinct economic chetypes of social change and development? circumstances and criminality, there were criminal laws in place to impose negative sanctions on these reoccurring offenses. In the case of the 2 Crimes of the powerful daily victimization of 19th century manufacturing workers, there were laws to avert their wretched Unlike most people who attach a variety of working conditions. Nevertheless, impoverished ideas or meanings to the term globalization, few factory workers, adults and children alike, in lo- people have any thoughts about the meanings at- cations like Manchester, Leeds, and Birmingham tached to the idiom, “the crimes of the powerful.” were subject to floggings, starvation, and 18-hour By contrast, early in the 21st century when cri- workdays. In response, the biggest manufacturers minologists, legal scholars or practitioners, and regularly received state immunity for their routi- human rights activists, talk about the crimes of ne violations of laws prohibiting mistreatment of the powerful, they are not referring primarily to their employees (HARVEY, 2014). the criminal violations of atomized individuals. Early in this millennium, the wave of institu- Rather, they are referencing the crimes of the eco- tionalized crimes by the financial services indus- nomy or the crimes of capital accumulation and try in the US and elsewhere, which precipitated reproduction. Within the prevailing interests and the Wall Street implosion of 2008 were commit- relations of global capital, these crimes include ted with the assistance from the national deregu- those institutionalized political and economic lation of certain securities transactions that were arrangements that structurally routinize harm, previously criminal. At the same time, there were injury, and victimization. These contradictions other laws still in place to protect consumers or of bourgeois legality are part and parcel of capital investors and to criminally punish the world’s lar- formation and of the associated activities that have gest financial firms for failing to engage in due -di made these violations ideologically normative or ligences or for trafficking in toxic securities mas- culturally acceptable. In other words, the crimes querading as triple AAA certified investments. As of the powerful refer to those transgressions that most informed people are now aware, these and simply normalize victimization as “the costs of other systemic criminal violations throughout the doing business” and as “collateral damages.”

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 105 G. Barak financial services industry created housing bub- a plethora of harmful and dangerous activities bles and crashes and a subsequent global recession, that are routinely beyond legal incrimination and which resulted in the losses of trillions of dollars safe from civil action. in capital and the victimization of hundreds of millions of people worldwide. And yet, not one of those financial entities or their principal agents 3 On the contemporary global responsible for the high-stakes securities frauds economy has ever been subject to criminal penalty. In both of these “business as usual” crime scenarios, the lack of criminal prosecution of the When it comes to contextualizing the con- routinized illegal behaviors have been justified or temporary state of global capital, most economists rationalized away because of the alleged necessity will agree that the complexities of forces shaping of capitalizing accumulation, of enhancing the macroeconomic institutions today are a product of interests of the capitalist state, and of elevating the fact that the rates of output growths have de- the national well being of all citizens. These social clined around the world, a legacy in part of both relations of criminal non-enforcement are reflec- the Eurozone and supranational economic crises tive of a legal order where the capitalist state not still prevalent in many countries throughout the only possesses the monopoly over the legitimate world. With respect to these global forces, there use of force and violence, but also the sovereig- are to varying degrees, high levels of debt—pu- nty over the currency and the law. In addition, the blic, corporate, and household—that continue to capitalist state possesses the power to tax and to weigh in on spending and growth, on failed and redistribute incomes and assets as well as the re- nonperforming loans, and on limiting the credit gulatory authority over other institutions, such as supply for new borrowers. Concerning declining education, health care, and criminal justice. Most consumption and output growth in the advanced importantly, the capitalist state has the ultimate economies, these were occurring even before the power or eminent domain over private and public global economic crisis made them worse by de- property, as these are most often deferential to the creasing investment lending and weakening gro- needs of capitalist accumulation and reproduc- wth productivity. tion. However, in an age of global capital, accu- In emerging markets, the effects have been mulation and reproduction are transnational and even more pronounced, especially where ageing the capitalist state is increasingly dependent upon populations, lower capital accumulation, and and subject to the growing interests of multinatio- slower productivity growth are combining to fo- nal corporations. reshadow a weaker overall potential for sustaina- To be both formalistic and legalistic, the cri- ble expansion in the future. In a few words, gro- mes of the powerful are typically committed by wth or the lack of growth is uneven at best and well-established private and/or public organiza- catastrophic at worse, especially as winners and tions in violation of the rights of workers, women, losers are created in relation ordinarily to larger children, taxpayers, consumers, marketplaces, monetary movements and extraordinarily du- political and eco-systems, or against the interests ring international economic crises that precipi- of equity and religiosity, ethnicity and race, and tate global depressions. In the case of ordinary gender and sexuality. Furthermore, the crimes of monetary relations, there are, for example, the the powerful are inclusive of the less commonly relative prices between the exchange rates of the practiced forms of social harm and injury such dollar, the euro and the yen or whether the price as those involving torture or genocide. These ex- of oil or corn is increasing or decreasing, or in es- treme examples of human rights violations are tablishing the international prime borrowing and typically known internationally as the crimes other benchmark interest rates. In response to the of war and/or crimes against humanity and the extraordinary debt crises brought about by the peace. In a nutshell, the crimes of the powerful ripple effects of the Wall Street financial implo- concern a wide range of activities that are perfor- sion of 2008, central banks around the world have med illegally as well as a narrower range of illegal spent more than $10 trillion trying to stimulate avoidances or omissions that frustrate or do not the economy. sustain morally bounded obligations, and finally, As a result, a tidal wave of cheap money has been key to propping up or sustaining growth in

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 106 The Crimes of the Powerful… many countries, to cutting unemployment, and to of states having the combined effects of mini- starving off, if not preventing, panic. Nevertheless, mizing corporate risks and of decriminalizing the prospects of Greece’s default created a panic of numerous kinds of institutionalized harms and sorts that reverberated in stock markets around the injuries. Former U.S. Labor Secretary Robert Rei- world as nervous investors sold off stocks pushing ch has described TPPA as NAFTA on steroids. down the value in several major stock markets, in- As part of the newest generation of global trade cluding a decline of more than 20 percent in Chi- agreements, TPPA and others such as the Trade na. Similar bear runs occurred in other stock mar- in Services Agreement (TISA), which if univer- kets as sellers turned to safer government bonds sally adopted, would gut the abilities of democra- paying less and adding to the problem of tighter tic governments to protect their citizens en mas- money. The point is that while Greece and Puerto se. For example, investor arbitration clauses that Rico represent extreme cases of borrowing, high have been inserted will have established speciali- borrowing by governments and corporations ge- zed corporate courts and a framework of interna- nerally, is also bogging down the globally signifi- tional corporate law, allowing multinationals to cant economies of Brazil, Turkey, Italy and China. sue governments as well as their regulations for In terms of the future economic climate, the ques- interfering with the growth of their bottom lines. tion becomes: how long can credit be extended to member nations for unpayable debts? In addition, to the global economic slowdo- 4 An historical and unifying wn, if not, outright stagnation in some geogra- framework of the crimes of phical locales, there is the increasing competition between multinational conglomerates, coupled the powerful with the geopolitical and neoliberal economic policies of austerity and privatization that syner- As part of the institutional crises and the gistically facilitate the “race to the bottom.” Sus- changing social and political landscapes of the tained by the development of such asymmetrical 1960s and 1970s, the study of “white collar” cri- international trading deals as the North Ame- minals began to shift to illegalities committed by rican Free Trade Agreement in the 1990s, or by private business organizations or corporations the recently authorized Trans Pacific Partnership and by state institutions. As Alan Block and Wil- Agreement setting in motion the trading relations liam Chambliss (1981:2) wrote about the changing of some forty nations, and enabled by the world’s discipline at the time: “criminology underwent a concentrated pockets of corporate wealth accu- ‘paradigm revolution’” with the “emergence of mulating exponentially, multinationals and their ‘the new criminology’” (Taylor, Walton & Young transnational leverage—political, economic, and 1973) and “the study of the ‘crimes of the power- legal—also expands accordingly. Globally, howe- ful’” (Pearce 1976), which included those “crimes ver, there are other nations in varying geographic of nation states, through the illegal and immoral regions, developing trading blocs and associations, acts of large corporations, to misuses of police such as the newly formed Regional Comprehensi- and political office by local, state, and national ve Economic Partnership in 2015, involving ten power holders.” As part of a newly radical and Southeast Asian nations, including China but subsequently emerging critical paradigm, investi- excluding the United States, and constituting 50 gators were free to examine the crimes of power percent of world’s population compared to the and privilege (Krisberg 1975) as well as the ins- TPPA’s 40 percent. Here’s a pertinent question: titutional abuses of racism, sexism, imperialism, Perhaps, a trading agreement or bloc of countries neocolonialism, and capitalism (Schwendinger & involving both China and the United States would Schwendinger 1970). be better for more citizens of the world than with This paradigmatic shift allowed for entertai- China and the US making it harder for each other ning the idea that these institutional arrangements and their respective trading partners? were criminogenic. Similarly, in 1981Block and In the meanwhile, the more common asym- Chambliss were writing about why the “criminal metrical trading agreements lower tariffs, de- law and criminal behavior are best understood press wages, bring havoc to environments, and not in terms of customs, norms, or value-conflict disenfranchise citizens as well as the sovereignty and interest-group activity, but as directly linked

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 107 G. Barak to efforts by the state to create laws as a resolution lization of crime that is responsible for much of to dilemmas created by conflicts that develop out the world’s ecosystem destruction and environ- of the basic contradictions in the political eco- mental pollution, are also associated with those nomy” (p. 10). Some twenty-five years later, David multinational corporations that have often aban- Whyte (2008) the editor of Crimes of the Powerful: doned traditional employment models as they are A Reader, underscored that the study of the cri- simultaneously ridding themselves of union con- mes of the powerful is “not merely about crime; tracts, healthy work places, direct liability, and em- it is really about power” and the institutionally ployment taxes. In their place, these corporations powerful who have become “the central agents of substitute government-subsidized business mo- power in contemporary societies” (p.3). And, as I dels that pay excessively low wages, engage in wage maintain in the recently published, The Routledge theft and retaliation, and use contingent workers. International Handbook of the Crimes of the Po- werful (Barak, 2015: 4), “the unifying framework for examining the crimes of the powerful is found 5 The globalization of crime in the dialectical expansion or contraction of harms informed, on the one hand, by the reciprocal Whether one is discussing Jock Young’s relations of accumulating licit and illicit capital (1999) logics of exclusivity and the social bulimia and, on the other hand, by the reciprocal relations of late modernity or Saskia Sassen’s (2014) logics of capitalist reproduction interloping with the of expulsion and the elementary brutalities of ad- systems of bourgeois legality and the apparatus of vanced political economies, each of these analy- the capitalist state.” ses of a post-Keynesian multinational world order In everyday terms, the crimes of powerful captures the new realities of advanced capitalism are inclusive of a panoply of criminal and civil and the globalization of crime. These social rea- offenses that range from the more mundane thie- lities include neoliberal policies of austerity and very, swindling, corruption, usury, predation, vio- privatization, the diminution of the welfare state, lence and coercion to the more arcane practices the immiseration and exclusion of not only the of monopolization, manipulation, market corne- indigenous or migrant classes but also the former ring, price-fixing, and Ponzi schemes, to the more working and middle classes of developed socie- exceptional war crimes or crimes against huma- ties, as well as the critically shrinking role of mass nity, to the more common crimes against the phy- consumption for profits in a number of economic sical environment. More abstractly, the contem- sectors, especially those intertwined with an in- porary crimes of the very powerful are where the creasingly driven financial globalism marked by personal and the collective intersect and where all the systemic extraction and destruction of the species might just depend for their common sur- social, the economic, and the biospheric (Klein vival. Finally, the crimes of powerful have recently 2007; Harvey 2014). These crimes of scale and te- been classified into seven clustered or developing chnology not only push people out or away from sets of activities for the purposes of organizing the societies as they contract the spaces of traditional international handbook (Barak, 2015) as follows: geo-economies, but they also expand those spaces (1) crimes of globalization, (2) corporate crimes of the newer corporate and transnational sectors. (3) environmental crimes, (4) financial crimes, (5) More precisely, the crimes of globalization state crimes, (6) state-corporate crimes, and (7) refer to “those demonstrably harmful policies state-routinized crimes. At the same time, these and practices of institutions and entities that…by overlapping and semiautonomous forms of the their very nature occur within a global context” crimes of the powerful often coincide with one or (Rothe and Friedrichs 2015: 26). These crimes more of the other forms. of globalization are empowered, in part, by the For example, in the case of environmental policies of neoliberalism and the actions of inter- crimes, which are harmful to the air we breathe, national financial institutions such as the World the water we drink, and the food we eat, these Bank and the International Monetary Fund and, may overlap with other powerful forms such as in part, by the competitive needs of capital accu- global, corporate, financial, state, state-corporate, mulation and global markets. As these four sphe- and state-routinized crimes. Similarly, the globa- res of powerful interests and relations of capitalist

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 108 The Crimes of the Powerful… reproduction interact in the commercial affairs of In a second study, “State and Corporate nations and multinational corporations, they of- Drivers of Global Dysnomie: Horrendous Cri- ten negatively affect the well being of both animal mes and the Law,” Anamika Twyman-Ghoshal and human populations as well as the ecosystems and Nikos Passas (2015) examined the extent to and natural environments more generally, in which neoliberal policies contribute to crimi- which they all struggle to ultimately survive. nogenic processes. They did so by applying the These global crimes are represented by vio- analytical framework of global anomie theory lations of domestic, international, and huma- (GAT) to two different cases of global interven- nitarian law and are not limited to a myriad of tion, the first involving maritime piracy off the abuses and harms, including the contamination coast of Somalia, and the second involving the of natural resources, health complications, high forced eviction of an entire group of people from rates of poverty, extreme inequalities, global dys- the island of Diego Garcia in order to establish a nomie, predatory activities, toxic waste dumping, US military base and the accompanying theft of violations of sovereignty, assassinations and disa- this nation from the Chagossian people. They ar- ppearances, forced evictions, thefts of homelands, gue that global anomie theory is useful for both recolonization, human trafficking, and the vio- understanding transnational misconduct and lations of workers, women, and children’s rights. explaining how the processes of globalization Let us now briefly discuss some examples of the can lead to anomie, dysnomie, and horrendous globalization of crime and its lack of control from crimes. Among their conclusions, Twyman- the Global South, followed by a more probing il- -Ghoshal and Passas maintain that their exa- lustration from the Global North involving the minations expose not only the double standards first, “first world third world” nation and the -va and inexcusable abuses of power, but these also garies of crime and crime control in one metropo- explain how global policies of neoliberalism are litan downtown and urban area. conducive to mass victimization. In one study, “Capital and Catharsis in the In a third study, “Truth, Justice and the Nigerian Petroleum Extraction Industry: Lessons Walmart way: Consequences of a Retailing Behe- on the Crimes of Globalization,” which is consis- moth,” Lloyd Klein and Steve Lang (2015) scruti- tent with a growing body of literature that con- nize the workings of Walmart and other multina- ceptualizes market-driven harms as criminoge- tional global retailing businesses, spotlighting an nic, Ifeanyi Ezeonu (2015) examined the political international business model that bypasses envi- economy of oil extraction in the Niger Delta and ronmental standards, creates dangerous manu- the harmful activities of transnational corpora- facturing conditions, and subverts workers rights tions. Ezeonu concludes that without a strong as a strategy for importing cheaply manufactured regulatory framework in Nigeria the Niger Delta goods primarily to the United States. After ex- region has become a perfect landscape for neoli- ploring the negative consequences of Walmart’s beralism and economic activities that have been business model for workers and communities in sustained at highly negative costs to the indige- several countries, including China, Mexico, and Bangladesh, they turn their attention to focusing nous population, to healthiness, and to the natu- “on the ways in which workers and communities ral environment. While such practices manifest struggle to resist Walmart’s exploitative corpora- high rates of poverty and extreme economic ine- te practices.” They also point out how countries quality, he also underscores how these abuses by such as Germany in the Global North have suc- a significant number of Western transnational cessfully resisted the expansion of Walmart ‘s corporations involved in crude oil and marketing global reach and its exploitation of workers and have been aided by the various regimes of the Ni- environments alike. I would now like to turn to gerian government. Ezeonu also concludes that an exemplary case study in the logics of crime, while the crimes of globalization aptly capture social disorganization, privatization, and diffe- the Niger Delta region as a site of neoliberalism rential law enforcement from Detroit, Michigan. and enormous wealth and plunder, the collabo- rate roles of domestic capitalists, many of whom control apparatuses of state power, also encoura- ges the re-contextualizing of these crimes as do- mestically preventable market generated harms.

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6 Capital disinvestment, auste- re mile neighborhood located within Detroit. Extremely dangerous, blighted, and 94% black, rity, crime and gentrification: Highland Park is a concentrated example of the a tale of two cities conditions in Detroit’s poorest neighborhoods. When Highland Park was slapped with its first The decline in the automobile industry in appointed emergency manager in 2001, he fired the Motor City and the devastation of Detroit has the entire municipal police force, outsourcing pa- been, in a part, a product partly of global compe- trols to the Wayne County Sheriff’s Department. tition and, in part, has resulted from the massive By late 2011, Highland Park “was so deep in debt exodus of capital and residents over the past six to its public electric company, DTE Energy (for- decades. Together, these global and local forces merly DTE Energy Services and Goldman Sachs have left the city broken down and overgrown in Group, and currently a subsidiary of Commerz- municipal debt. In addition, years of budget cuts bank AG, of Germany) that the local government have dismantled Detroits most basic public ser- was forced to decommission all streetlights on vices and infrastructure—including police, fire, its residential streets. Not only did DTE cut the and even streetlights where as many as 40 percent power…it sent out workers to physically dig up of formerly lit streets were dark in 2014—to ba- and remove nearly 1,000 light-poles from the rely functional levels. The one time motor hub of neighborhood” (SHEEHAN, 2015). Today, the re- the world with a peak population of 1,850,000 in sidents of Highland Park live in permanent debt- 1950 had fallen to 701,000 by 2013, the year that -induced darkness, plagued by some of the highest Detroit filed the largest municipal bankruptcy crime- and lowest arrest-rates in the United States. in U.S. history. Not long after that, on December At the same time, nearly six miles away, in 10, 2014 the City successfully exited bankruptcy Detroit’s rapidly gentrifying downtown area, DTE court and was ready to start over or reinvent it- Energy has launched a pro-bono security program self. So eight short months later, how has Detroit in the increasingly white area: “On its own dime, been doing compared to before, during, and af- DTE operates a public ‘bait car’ program. It buys ter the Emergency Managers were put in place by and sets booby-trap cars out on the downtown Michigan governors to administratively run the streets, outfitted with up to 18 hidden cameras, city without real input or say by the democra- to lure and ultimately deter potential car theft.” tically elected mayor and city council members? Additionally, DTE’s partnership with downtown Well that answer depends because the- police “assures that cops will be on the scene wi- re are really two Detroits and each side tells a thin 90 seconds of when the bait car is entered.” different story. One story is about “downtown, Meanwhile, in Detroit’s black neighborhoods, white and professional, bathed in state-of-the- “public safety has been sacrificed to the gods of -art private security” and one story takes place austerity.” In short, with the city government “too in the “‘neighborhoods,’ poor and black where poor to provide basic security, safety has become a public safety has become a do-it-yourself endea- private commodity, accessible to the wealthy, but vor” (Sheehan, 2015). The brighter story making far out of the reach for the majority of Detroiters” all the headlines is “Detroit, the Comeback City” (Sheehan, 2015). and the narrative is all about the revitalization of Here is some choice data from Detroit on the downtown and the concentrated investment, the subject of crime, austerity, and law enforce- where, for example, Dan Gilbert, founder of Quic- ment: In 2005 Detroit had 303 paramedics wor- ken Loans and Rock Ventures, and owner of the king the streets, by 2010 that number had been Cleveland Cavaliers’ Basketball team, has poured cut to 188 to match the city’s shrinking budget. $1.6 billion of his own money into the revival of In 2013, the same year that Detroit led the nation a single square mile of Detroit’s downtown. The with 333 homicides, the police department took a other story buried in the back pages of the news- $75 million or 18 percent overall cut in funding. papers is about how a much larger Detroit is still As for paramedic and 911 police response times experiencing urban decay and destruction, win- in the affected areas, well don’t ask. Bottom line, ning the most dangerous city in America honors the steady and long-term disinvestment in public five out of the last seven years. safety shows up in Detroit’s crime and absence of In particular, let’s consider the infamous arrest rates: In any given week, Detroit averages community of Highland Park, a tiny 3-squa- seven murders, 226 burglaries, 92 robberies, 169

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 110 The Crimes of the Powerful… aggravated assaults, 228 stolen cars, 331 larceny ducted torture following the terrorist attacks of thefts, 12 rapes, and 279 violent crime. Meanwhi- September 11, 2001. And, while the world is well le, the vast majority of those crimes occurring in aware, for example, that Khalid Shaikh Moham- the neighborhoods and leading to no arrests! med, the alleged mastermind behind the Twin Towers destruction and killing of close to 3000 persons, had been water-boarded 183 times by the 7 Lessons learned from the CIA, the same cannot be stated about the hun- international handbook: fai- dreds of other enemy combatants who were tortured on behalf of the US at numerous black sites ling to control the crimes of around the world. the powerful Under the rule of law, the state apparatus should have focused its attention on and punished those who had abetted or committed this tortu- If there were only three thematic refrains ring. Accordingly, the European Court of Human from The Routledge International Handbook of the Rights has ordered Poland and Macedonia to pay Crimes of the Powerful, probably the most unifying damages to detainees for their complicity in the of those would be the extent to which the enforce- C.I.A.’s secret torture program. The USA, howe- ment apparatuses of capitalist states have failed mi- ver, like other global powers of exception conti- serably to control the crimes of the powerful. Ano- nues to buck the, heretofore, prevailing trends in ther unifying theme would be the extent to which international law and justice. Although Mr. Oba- state apparatuses, corporations, and financial insti- ma in August of 2014 finally did publicly ackno- tutions will invest in strategies to deceive the wledge, “we tortured some folks,” he continues consuming public, to distort and mystify harmful “to resist the consequences of that admission. His practices, to deny and dilute the effects of wides- administration has even pressed federal judges to pread victimization, and to co-opt or resist those close the door on civil suits by former detainees, interests, policies, or laws that contest the domi- citing state secrets” (HAFETZ, 2014). This type of nant relations of their power and abusive behavior. state-routinized crime looks, sounds and smells A third unifying theme, at least implicitly if not strikingly familiar to the same modus operandi of explicitly, would be the extent to which the exis- denial used by the Obama administration to clear ting power arrangements of the state-noncriminal the banksters of Wall Street for their criminal and nexus of unsustainable capitalist expansion needs fraudulent wrongdoings that nearly collapsed the to be fundamentally transformed through massive worldwide economy (BARAK, 2012). social, political, and economic change. These contradictory absences of the “rule of Certainly, one of the most prominent exam- law” and the conventionalization or normalization ples of the state-noncriminal working nexus failing of these crimes of the powerful across a liberal de- to control the crimes of the powerful in general mocratic society like the United States is also indi- and state criminality in particular was when Pre- cative of the degree to which its economic leaders sident Obama, the US Congress, and the Depart- and political institutions are not held accountab- ment of Justice in a shared “state of denial” did le to and/or dependent on rules and regulations not pursue criminal charges against officials of that are fairly applied. Historically, Francis Fuku- President George W. Bush’s administration for yama (2014) has shown that political law, order, torturing and other criminal misconduct that and decay fluctuate in response to the changing were integral parts of their “secret” war on terror. modes and relations of production. For example, Not only did Mr. Obama declare that the United throughout the laissez-faire 19th century, the US States should “look forward, as opposed to loo- had a weak, decentralized, corrupt, and pre-indus- king backward,” but his administration was also trial patrimonial state. During this period, graft unwilling to entertain an independent investiga- and other forms of bribery contributed not only to tion into the torture. Even after a Senate intelli- the buying of justice by those who could afford it gence committee finally released its long-awaited but also to national immorality. At the time, rac- summary of a 6,200 page “torture review” that kets, pull, and protection were common antidotes had involved more than a year of legal review and for stubborn legal nuances. Prevailing values of redactions, there never was a full accountability wealth and success predominated as guiding prin- from those who arranged, encouraged, and con-

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 111 G. Barak ciples of right and wrong (Barak 1980). Well into Supreme Court decisions have facilitated this re- the 20th century, the “ability to ‘make good’ and versal, exemplified by Citizens United and Hob- ‘get away with it’ offset the questionable means by Lobby, both further expanding the power and employed in the business as well as the professio- rights of “insider” corporate entities over those of nal world. In short, disrespect for law, [order, and “outsider” individuals. In the process, the politi- democracy] is the accompanying product of this cal institutions have become less democratic, less scheme of success” (Cantor 1932: 145). fair, less efficient, and more dependent on corpo- In the united States, from the turn of the 20th rate classes for their policy setting agendas. Fai- century up through the 1960s, changes brought ling to control the crimes of the powerful is only about by a social revolution (first expressed by one manifestation of the decaying state of affairs President Teddy Roosevelt and the Progressives in the United States and elsewhere. and later by his distant cousin President Franklin Roosevelt and the New Dealers) and driven by the forces of industrialization, recognized the plights 8 Crises, contradictions and and the struggles of the poor and the marginal unchecked capital accumula- classes. As a response to those masses of individuals who were not benefitting from and were po- tion: a prototype for the 21st sing a threat to the expanding political economy, century? some sectors of the ruling strata in combination with the Progressive social movement set about More than six years after the financial col- to provide a Square Deal for everyday people and lapse a global recession, if not economic crisis, still to “clean up” working environments as well as the persists throughout the world. The well being of the political corruption within and without the legal relatively powerless people continues to deteriorate. systems. In addition, a strong unionization mo- Meanwhile, the superrich and the very powerful are vement of working Americans and a “radical” getting much richer and more powerful than ever way of thinking eventually gained the political before. In 2012 the top 100 billionaires from China, support of some industrialists and other social Russia, India, Mexico, Indonesia, North Ameri- leaders. As a result, a much stronger and centra- ca, and Europe added $240 billion to their coffers, lized capitalist state emerged in the 1930s, subject enough money Oxfam calculates to end world po- to Keynesianism and a slew of new federal regu- verty overnight. Unfortunately, the current policies lations, realizing a legal zenith of sorts with the in place to address these contradictions are more “due process” revolution of the Earl Warren Su- likely to exacerbate rather than to ameliorate them. preme Court in the 1960s. Unless the power relations behind the policies that However, by the 1980s and up to the pre- speak to the problems of capital accumulation, sent, one could argue that a decaying process of reproduction, and consumption fundamentally workers’ rights or a reversal of legitimation of the change, then the prospects of controlling the cri- common good has been occurring, in response mes of the powerful as opposed to suffering from both to the ideologies of neo-conservatism and these will remain close to zero. neoliberalism and to the forces of global compe- Policy wise, the contemporary world finds titive capitalism. And by the 1990s, as the “me itself caught between neoliberal, supply-side and generation” of graduates from elite colleges and monetarist remedies as in Europe and the United universities flocked to Wall Street to make their States that emphasize austerity and privatization, financial fortunes as investment brokers, arbitra- on the one hand, or a centralized demand-side ge dealers, and derivative traders, unenlightened and debt-financed expansion that ignores the self-interest, unregulated financial markets, and Keynesian emphasis on the redistribution of mo- unfettered victimization had become the order of ney to ordinary people as in China, on the other the day. As Fukuyama (2014) argues political and hand. Paradoxically, the economic and social social, if not, economic development in the US has outcomes are the same—widening and escalating been going in reverse, spurred by deregulation, inequalities—because in either case the world is privatization, growing inequality, concentrating increasingly turning to central banks, led by the wealth and power, a decaying infrastructure, and US Federal Reserve and the European Central a contracting welfare state. Similarly, recent U.S. Bank, to manage the reoccurring financial global

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 112 The Crimes of the Powerful… crises. Their approaches to resolving the problem References of capital accumulation depend, in other words, on the “dictatorship” of the world’s central ban- Barak, G. (ed.). 2015. The Routledge International kers whose primary concern is about protecting Handbook of the Crimes of the Powerful. London and bailing out, when necessary, the megabanks, and New York: Taylor & Francis Group. the plutocrats that run them, and the various sys- Barak, G. 2012. Theft of a Nation: Wall Street Looting tems of market capitalism with little, if any, regard and Federal Regulatory Colluding. Lanham, MD: for the well being of the general masses of people. Rowman & Littlefield. Dialectically, however, there are developing Barak, G. 1980. In Defense of Whom? A Critique of counter or alternative global financial institu- Criminal Justice Reform. Cincinnati, OH: Anderson tions, involving major emerging national econo- Publishing. mies. The countries of Brazil, Russia, India, Chi- Bassiouni, M. Cherif (ed.). Globalization and Its na, and South Africa, for example, now constitute Impact on the Future of Human Rights and Interna- the BRICS. These five nations have formed their tional Criminal Justice. Cambridge, UK: Intersentia. own central bank for the purposes of competing with the other global central banks to regulate the Block, A. and Chambliss, W. 1981. Organizing Cri- me. New York: Elsevier. world’s financial markets “on their own terms.” Perhaps, global competition for capital among Cantor, N. 1932. Crime: Criminals and Criminal several banking financial oligopolies the world Justice. New York: Henry Holt. over might result not only in more “fair” than Carson, W.I. 1979. “The Conventionalization of Early “free” trade, but also in lower consumer prices for Factory Crime.” International Journal for the Socio- everyone. logy of Law 7: 37-60. In conclusion, unless the prevailing political Ezeonu, I. 2015. Capital and Catharsis in the Nige- and economic arrangements locally and globally rian Petroleum Extraction Industry: Lessons on the as well as the contradictions of the bourgeois legal Crimes of Globalization. In G. Barak, The Routledge relations of the capitalist state are structurally ad- International Handbook of the Crimes of the Power- dressed, it is very hard to imagine how any other ful. London and New York: Taylor & Francis Group, pp. 89-104. kind of tinkering will alter the negative trends of unsustainable capital development or make any Fukuyama, F. 2014. Political Order and Political kind of dent in the volume of, let alone, in the dri- Decay: From the Industrial Revolution to the Globa- lization of Democracy. New York: Farrar, Straus & ving forces underpinning the crimes and victimi- Giroux. zation of the powerful. Therefore, what is needed, as an alternative to the current economic malaises Hafetz, J. 2014. “Don’t Execute Those We Tortured.” is a worldwide peoples movement on behalf of a The New York Times. Sept. 25: A31. global system of international Keynesianism, an Harvey, D. 2014. Seventeen Contradictions and the End Eco-welfarism, and a Marshall-like strategic plan of Capitalism. Oxford, UK: Oxford University Press. of sustainable growth. Consistent with this uto- Klein, L. and Lang, S. 2015. Truth, Justice and the pian vision is a realpolitik recognition that resis- Walmart Way: Consequences of a Retailing Behe- ting the crimes of the powerful has little in com- moth. In G. Barak, The Routledge International mon with trying to make the existing regulatory Handbook of the Crimes of the Powerful. London or penal arrangements of social control work bet- and New York: Taylor & Francis Group, pp. 121-131. ter through reformist type modifications of busi- Klein, N. 2007. The Shock Doctrine: The Rise of ness as usual. Rather, fundamental changes of the Disaster Capitalism. New York: Henry Holt and political economy through social, cultural, and Company. global activism are called for. In short, without Krisberg, B. 1975. Crime and Privilege: Towards addressing the contradictions of unsustainable a New Criminology. Englewood Cliffs, NJ: Pren- capitalist expansionism and without eliminating tice-Hall. Pearce, F. 1976. Crimes of the Powerful. the basic conditions that nurture the crimes of the London: Pluto Press. powerful, new and improved social controls will Prins, N. 2014. All the Presidents’ Bankers: The Hid- not change the enduring reproduction of these den Alliances that Drive American Power. New York: crimes and their mass victimization of both hu- Nation Books. mans and animals. Rothe, D. and Friedrichs, D. 2015. Crimes of Globali- zation. London: Routledge.

Revista Brasileira de Direito, 11(2): 104-114, jul.-dez. 2015 - ISSN 2238-0604 113 G. Barak

Ruggiero, V. 2013. The Crimes of the Economy: A Taylor, I., Walton, P. and Young, J. 1973. The New Criminological Analysis of Economic Thought. Lon- Criminology: For a Social Theory of Deviance. Lon- don: Routledge. don: Routledge & Kegan Paul. Sassen, S. 2014. Expulsions: Brutality and Comple- Twyman-Ghoshal, A. and Passas, N. 2015. State and xity in the Global Economy. Corporate Drivers of Global Dysnomie: Horrendous Cambridge, MA: The Belknap Press of Harvard Crimes and the Law. In G. Barak, The Routledge In- University Press. ternational Handbook of the Crimes of the Powerful. London and New York: Taylor & Francis Group, pp. Schwendinger, H. and Schwendinger, J. 1970. “Defen- 105-120. ders of Order or Guardians of Human Rights.” Issues in Criminology, 5:123-157. Whyte, D. ed. 2009. The Crimes of the Powerful: A Reader. Berkshire, England: Open University Press. Sheehan, Patrick. 2015. “Detroit: A Case Study of Oligarchs and Vigilantes Taking Over Pu- Young, J. 1999. The Exclusive Society. London: Ma- blic Safety in a Big City.” Naked Capitalism. cmillan. .

Os crimes dos poderosos e a globalização do crime

Resumo

Inspirado pelo tema e escrito para o Seminário Internacional de Direito, Democracia e Sustentabilida- de, 13-14 de agosto de 2015, IMED, Passo Fundo, este artigo examina os crimes dos poderosos, repre- sentados pelas corporações multinacionais, organizações estatais e atores não estatais, tanto no contex- to da geopolítica quanto da globalização do capital. O ensaio visa a definir exaustivamente os crimes dos poderosos, proporcionando uma visão geral da globalização do crime e da vitimização. Além disso, para discutir as relações da globalização do crime, do capital, e do controle social, eu resumirei as prin- cipais lições aprendidas a partir de The Routledge International Handbook of the Crimes of the Powerful (2015), do qual eu fui editor e colaborador. Por fim, concluo respondendo à questão dialética de se a atual recessão econômica, as contrações e a expansão desenfreada de riqueza financeira e corporativa são sustentáveis e representam um protótipo de coisas para vir ou não são sustentáveis e representam a necessidade de desenvolver arquétipos alternativos de mudança e de sustentabilidade? Palavras-chave: Crime. Globalização. Economia Política. Poderosos. Sustentável.

Recebido em: 17/08/2015 Aprovado em: 29/10/2015

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