Despite the headlines that seem to focus on political misconduct and white collar crimes, federal statistics report that white collar criminal prosecutions are actually on the decline. This is an unusual trend in that federal prosecution levels overall remain historically high.
Prosecutions are down over five percent from a year ago, and over 35 percent from five years ago, according to this Transaction Records Access Clearinghouse (TRAC) report. In fact, white collar crime is down over 40 percent from 1998, in spite of increased regulation since the financial recession of 2008. Multiple factors can explain why white-collar prosecutions continue to be on the decline.
First, in 2001, the Federal Bureau of Investigation, the agency responsible for most criminal prosecution referrals, started making investigating terrorism a priority after the attacks on the World Trade Center on September 11. The next most active referral agency is the IRS, whose budget has been cut over the last decade.
Tax audits have dipped to below one million in 2017, down 33 percent from nearly ten years ago. In fact, the IRS has the exact same number of agents as it did in the late 1960s, in spite of the increase in population and complexities in the tax code. Former Attorneys General have complained about the difficulty in prosecuting white-collar crimes, stating that some firms are so large and complex that an effective prosecution is nearly impossible.
It is true that when companies are vast, it can be difficult to pinpoint the individuals responsible for crimes, and even more difficult to prove beyond a reasonable doubt that those individuals had the requisite criminal knowledge or intent. High-level executives are particularly difficult to prosecute, given how distant they can be from the daily activities and decisions of middle management and other employees.
Deferred prosecution and non-prosecution agreements with individuals of companies are commonplace: from 2001 to 2014, prosecutors entered into 306 deferred prosecution agreements with companies – only 104 of those included individuals.
The United State is not an outlier in the difficulties in prosecuting white collar crimes. According to this report, white collar prosecutions are down 31 percent since 2011 in England and Wales. This trend corresponds to cuts in enforcement agencies similar to those in the United States: the main prosecution office has seen a decrease in its budget of 25 percent since 2010. Police budgets have fallen 14 percent over the same time period.
In the United States, there is also some evidence that the Department of Justice has decided that white collar criminal prosecutions are no longer a priority. New departmental guidelines have signaled a shift that allows for more leniency if a business cooperates and voluntarily discloses wrongdoing.
However, given the complexity of many white collar crimes and the lengthy investigations that often occur prior to prosecution, these statistics do not reflect the amount of effort and resources that are spent before a case is even filed. A more accurate approach would be to examine the amount of restitution, corporate penalties, and financial settlements that the department has received. But, that too is down – corporate penalties are down seventy-two percent from the end of President Barack Obama’s administration.
There is no one factor that is responsible for the decrease in white collar prosecutions even as criminal prosecutions increase at the federal level. But it seems clear that at a minimum, a lack of resources and shifting priorities are the driving forces behind the drop over the last twenty years.