No, let’s not go easier on white collar criminals
We all know the minimum sentencing laws for drug violations are nuts in this country. Combined with “broken windows” policing, those laws have sent entire generations of minority men to jail. We need criminal justice reform badly.
But one version of the bipartisan effort to address this issue, called H.R.4002 and backed by the Koch brothers, goes too far in a big way. In particular, it extends to white-collar crime and it insists that the defendant in a Federal criminal case “acted with intent.”
The entire bill is here, you can read it for yourself. Concentrate on Section 11, where it state:
if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.
Here’s why I am particularly aggravated about this. In writing my book I’ve been researching the way corporations rely on algorithms which are often unfair and discriminatory. Sometimes that unfairness is unintentional, but often it’s simply careless. In my book I’m calling for people to hold themselves and the algorithms accountable.
One of the trickiest things about the current state of affairs is that nobody in particular understands the algorithms they are using. They think of them, in a way, as “the voice of God.” Actually it’s more like “the voice of science,” because they are assumed to be scientific and objective. But in any case nobody interrogates them or their consequences, however unreasonable. Under this new law, there’d be no criminal charges against anyone, ever, who used such arbitrary tools.
I’d go further, in fact. If this law were on the books, there’d be every incentive in the world for corporations to hide tricky or criminal decisions in algorithms just for the reason that afterwards they would be able to say they didn’t know about it, and thus had no criminal intent. It would be an invitation for obfuscation. Such algorithms would be just the thing to introduce to allay litigation risk.
Have you noticed a lot of people going to jail for their part in mortgage fraud? Neither have I. We don’t actually need a new law that would make it harder for white-collar criminals to do time. We already live in a 2-tiered justice system; let’s not make it even worse.
There’s a Occupy the SEC petition that you can sign urging Congress to oppose this bill. It’s here. Please think about signing.