Compliance and Corporate Crime Control Research Paper

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Legal definitions of economic crime have long been in dispute. Formal prosecution of a crime needs an (individual) accused and a legally defined deviant act. Common parlance and media, however, speak of “economic crime” when they refer to corruption, financial manipulation, or fraudulent enrichment. As a reflection of typical status of the offenders, their crimes are dubbed “white-collar crime.” Moreover, the media often blames corporations and public agencies rather than individuals. Braithwaite (1984: 6) describes corporate crime as “the conduct of a corporation, or of employees acting on behalf of a corporation, which is proscribed and punishable by law.” Corporate crime, therefore, encompasses a wide array of illegal activities that are criminally, civilly, and administratively proscribed and which may be committed by individual managers as well as by the firm they work for. Thus, modern regulations have introduced fines and conditional exclusion (e.g., from competition) for well-defined organizational misconduct.

Additionally, enterprises may try to control misconduct by internal self-regulation and may penalize deviant employees and managers, using internal sanctions. Their regulatory definition of “misconduct” need not be restricted to criminal deviance but may include all sorts of agency (particularly company) activities which can lead to social damage and to public shaming (such as for health risks, environmental pollution, etc.). Consequently, corporate misconduct can be considered to something of a sliding scale of wrongdoing: crime, punishable by state sanction to organizational misconduct inspected by internal compliance management of corporations and other agencies. It is obvious that this scale ranges from “hard” criminal law with strict procedural rules (such as formal burden of proof and the right to defense) to “soft” regulation with managerial techniques of control. These concepts of “hard” and “soft,” however, do not indicate the severity of imposed sanctions but rather the legal definition of the rules and the procedures applied to control them. As is well known, the threat of hard sanctions, particularly if the misconduct is hard to prove, regularly leads to plea-bargaining or an out of court for a settlement (Cullen et al. 2006).

It follows from these definitions that there is quite some overlap of criminological research on corporate crime with business studies on compliance with regulation in corporations and other organizations. Corporate crime theories combine insights from criminology and organizational sciences. The leading paradigm blames organizations’ environments and structural characteristics for inducing managers and employees to commit crimes in a business context while otherwise behaving as law-abiding citizens. Prevention measures as well as repressive intervention focus on corporate strategy, structure, and culture to identify and change crime-fostering organizational conditions. Recently, however, there is an academic trend toward analyzing personality traits and criminal careers of corporate actors. Research on the frequency and causes of regulatory (non) compliance and corporate crime has to consider criminal justice interventions as well as corporate compliance management.

Research On Corporate Compliance

The dependent variable in studying compliance with corporate regulation may be seen on a gliding scale from the “hard” side of criminology which labels rule violations as “corporate crime” or “white-collar crime” to the “soft” side of political science and management which look at obedience with increasing mass of internal and external rules. As a result, the study of regulatory (non)compliance is rich and diverse, applying various methodological and theoretical approaches.

Parker and Nielsen (2011) distinguish two methodological approaches. The first is straightforward testing of theories which identify organizational characteristics and external factors that are associated with (non)compliance. This approach is concerned with measuring the prevalence and levels of (non)compliance as dependent variable. The explaining variables are typically individual motivation, organizational characteristics, and environmental factors such as industry culture and the regulation itself. The outcomes of such rigorous empirical studies are often used to design normative models for better regulation, which are expected to produce higher levels of compliance. Such “evidence-based” regulatory policies rely on explanatory theory building about causes of compliance and noncompliance.

The second approach aims at the social construction of the very notions of compliance and noncompliance. It tries to uncover multiple interpretations and meanings of compliance together with the power relations that lead to more or less social acceptance or denial of legitimacy. They use discourse analyses and empirical observation of interactions which define, maintain, or change notions of compliance. For instance, in her study on the enforcement of occupational safety and health regulation in the United Kingdom, Hutter concluded that defining, achieving, and maintaining compliance are an interactive process between regulator and regulated (Hutter 1997).

Both approaches complement each other. Internally, corporations use the term “compliance” for activities by which they try to ensure internal regulations, designing procedures and employ compliance officers. Externally, “compliance” stands for a style of regulation and enforcement, as opposed to a “deterrent” enforcement style.

Prevalence And Causes Of (Non) Compliance And Corporate Crime

The Prevalence Of Compliance And Noncompliance

In criminology, studies of new forms crime usually start with assessments of the scale in terms of the prevalence of offenses and the level of damage. Edwin Sutherland (1949/1983) is seen as the academic founding father of crimes committed in the context of otherwise legitimate business. He coined the term “white-collar crime” when he conducted a first study on regulatory noncompliance by America’s 70 largest corporations. He found sanctions for violations of government regulation in all of them, 97 % were recidivist and 60 % he even labeled as “habitual” criminals with more than four violations. Clinard and Yeager (1980) replicated this study by measuring noncompliance by America’s 500 largest corporations. They found widespread violation within several branches of industry with a concentration on a small number of habituals: 13 % of the offenders were responsible for about half of all violations.

It is extremely difficult to estimate the prevalence of corporate crime or corporate noncompliance. Since organizational crime is generally less visible and harder to define, the “dark numbers” are even higher than with ordinary crimes. Official statistics direct much more attention to conventional crime than to white-collar crime. Victims of manipulation, fraud, and embezzlement often do not detect their losses, and even if they become aware, may be reluctant to file reports due to fear of negative publicity. The police, customs, and other agencies have to handle variable or ambiguous legal definitions so that corporate crime is not uniformly defined, reported or recorded. Specific forms of business regulation are dispersed over several agencies which not always coordinate their enforcement (e.g., environmental regulation, occupational safety regulation, trade regulation, consumer protection regulation, etc.) Each of the numerous agencies may have its own forms of record keeping reflecting the expertise and priorities of the regulated field, but not reflecting the actual prevalence of noncompliance. Nevertheless, registrations of these enforcement agencies show that corporate rule breaking is widespread in many areas of regulation and branches of industry.

Motivation For Compliance And Noncompliance

Criminological theories on the causes of criminal behavior look at two types of explanatory variables: motivation – why people want to commit crimes, and opportunity – why people are able to commit crimes. The same variables can be found at the positive end of the compliance spectrum. Business regulation requires corporations to take certain action; corporations also have to be willing and able to comply. Thus, corporate deviance is often due to omission: Corporations violate rules as a result of failure to act in circumstances where that is necessary, e.g., financial reporting, installing prescribed equipment, or avoiding environmental pollution.

There is some debate as to whether to look for motives at the level of the organization or individual managers and employees. Managers’ social programming tends to the same action in same situations (Coleman 1987), and thus, their motives are identified with the goals of the organization as a whole. Some scholars even see the motivation of individuals as “irrelevant” in explaining corporate crime (Braithwaite 1984; Coleman 1987).

At the firm level, three types of motives for compliance and noncompliance are distinguished: economic, social, and normative motives. Economic motives refer to the extent to which the firm is committed to maximizing its own economic or material utility, such as increasing turnover and profit. Social motives refer to the extent to which a firm is committed to earning the approval and respect of significant people with whom an actor interacts including other businesses, trading partners, employees, customers, local communities, and the wider public. Normative motives refer to the extent to which the firm is committed to obeying the regulation for its own sake because of a sense of moral agreement with the specific regulation or a generalized sense of moral duty to comply. Empirical research has made it clear that there are a wide range of relevant motives and they interact with each other in reciprocal ways: Personal motives of managers are extrapolated to the motivations of the organization as a whole, and on the other hand, these shape the motivations of individual managers (Parker and Nielsen 2011).

The financial crisis and large accounting fraud cases have renewed the attention for personality traits that influence individuals’ motives for corporate crime. Large financial accounting frauds such as ENRON have been related to the personality traits of corporate executives. Public, political as well as academic debate on the causes of the financial crisis of 2008 have indicated the roots of the current credit crunch to be the result of excessive risk taking, moralistically referring to “greed” (Huisman 2011). Research has even linked masculinity to risk-taking financial markets (Coates and Herbert 2010). To prevent excessive risk taking and to change “masculine” corporate cultures, new laws prescribe certain quota of the members of corporate executive boards to be female. In recent studies, several personality traits are related to white-collar crime, such as the need for control, bullying, charisma, fear of falling or failing, company ambition, lack of integrity, narcism, and a lack of social conscience (Blickle et al. 2006; Bucy et al. 2008; Piquero et al. 2010; Ragatz and Fremouw 2010).

Opportunities And Organizational Capabilities

Opportunities for crime can be identified as means to commit crime as well as the lack of mechanism preventing it. While the general perception of organizational deviance sees it in the light of intention and economic motives, empirical studies have identified less serious causes such as widespread routine, and other types of organizational shortcomings (Van de Bunt and Huisman 2007; Vaughan 2011). Motivation to comply is of secondary importance if a firm does not possess the capacity to comply (Parker and Nielsen 2011). In this view, corporate rule breaking is the outcome of bounded rationality. Managers do not possess all the relevant information on the cost and benefits of options for action and organizational procedures lead to suboptimal outcomes. Landmark cases of organizational deviance – such as the Ford Pinto and the NASA Challenger – have falsified the initial explanation of these cases as being the result of rational and amoral calculation on the basis of cost-benefit assessments. Instead, the accidents were framed as being the result of organizational failure.

Most studies focus on the meso-level and try to identify criminogenic organizational strategies, structures, and cultures. These studies show that corporations set their ambitions high while tolerating poor practice regarding the means by which these goals should be attained (Wang and Holtfreter 2012). This dichotomy of ends and means varies with the amount of autonomy of departments. However, lack of internal control shows up in diverse organizational structures: In highly bureaucratic structures, managerial responsibility for shop-floor level misconduct tends to be diffused over several hierarchical layers, while in decentralized – loosely coupled – organizational structures the, more autonomous, subsidiaries might escape the monitoring of the parent company (Keane 1995). Organizational cultures may transmit ruletransgression by “normalizing” lawbreaking by neutralization and rationalization (Shover and Hochstetler 2002).

Multilevel Framework

Several authors brought the explanations together in an integrated framework of three categories of explanatory variables: motivation, opportunity, and (lack of) control (Coleman 1987; Shover and Bryant 1993). Integrative theories on the causes of corporate crime stress the interaction of variables on the institutional macro-level, the organizational meso-level, and the individual micro-level. Kramer and Michalowski (2006) place the three variables on three levels in a matrix with nine cells. To give some examples, on the macro-level, motivation is operationalized by the culture of competition characteristic for business, and that on the meso-level poses economic pressure on corporations to set ambitious targets which on the micro-level can provide individual managers with neutralizations to break rules to attain these goals. On the macro-level, the structure of the market determines the distribution of legitimate and illegitimate means to accomplish goals, while at the meso-level, the opportunities to attain goals are determined by the organizational structure. On micro-level, this can result in individual employees experiencing illegal means as the most attractive option for achieving goals. At the macro-level, the element of control points to the lack of administrative, political, and social control on the conduct of. If at the meso-level, the internal control structure is ineffective, it will result in an organization where on the micro-level, managers and employees rationalize illegal means for attaining organizational goals.

Corporate Crime Control

Academic models have suggested various strategies for monitoring compliance and controlling corporate crime. Some of these are used in practice. Generally, they distinguish two ideal-types of corporate crime control: a deterrence strategy and a compliance strategy. Alternative models develop integrative strategies. These models are based on assumption about the causes of compliance and noncompliance, as discussed in the previous section.

Deterrence Strategies

The deterrence style is referred to as “command and control”: Regulations are drafted by government agencies and imposed on business, and compliance is strictly monitored. Regulatory enforcement is concentrated on detecting and sanctioning violations. It is based on the assumption that compliance and violation are led by economic motives. Companies are seen as rational actors calculating costs and benefits of compliance and noncompliance. A deterrence strategy assumes that offenders will refrain from future offending, if detection and punishment occur with sufficient frequency and severity. However, the strategy is counterproductive when it takes away the voluntary motivation to comply. Simpson (2002), who spent much of her academic career testing the corporate deterrence theory, concluded that we know very little about whether, when, and why deterrence might work as a strategy for compliance enforcement. Compliance decisions are not determined by objective cost and benefits of compliance and noncompliance, but rather by the subjective perceptions of corporate managers. However, there is hardly any empirical evidence that deterrent enforcement styles succeed in influencing this perception. Instead, industry and organizational characteristics have stronger effects on compliance (Simpson 2002).

The application of civil or administrative law for regulatory enforcement can have punitive or even incapacitating business effects, for instance, issuing administrative fines or revoking licenses. Nevertheless, the deterrence style is mainly associated with criminal law. In practice, however, criminal prosecution of corporate offenders is scarce. Most cases of corporate crime are not prosecuted or at best, they lead to a financial settlement. The reasons for lack of priority compared to street crime are multilayered: Specialized expertise is necessary due to the technical complexity of cases of white-collar crime; there are coordination problems due to the many agencies involved in the enforcement of economic laws; white-collar offenders and large corporations might be able to hire better lawyers capable of finding weaknesses in the prosecution’s case; and finally because of legal difficulties, such as establishing who is liable in corporate entities (proving mens rea) and as well as the legal ambiguity of many regulations aimed at businesses. Nevertheless, heightened public “blaming” has increasingly led to prosecution and sanction in spectacular cases such as accounting fraud at ENRON, the Ponzi scheme of Madoff, and the large-scale bribery at Siemens.

The deterrence strategy also assumes that potential violators will be deterred by the punishment of offenders. In a landmark study, Thornton et al. (2005) found limited support for this assumption. In a survey of 233 American firms, it was examined whether companies learn about cases of severe penalties, in the same industry, and whether this knowledge changes the firms’ compliance-related behavior. They found that less than half of the companies could identify the “signal cases” of severe legal penalties. They concluded that “explicit general deterrence” does not enhance the perceived threat of legal punishment, but it may serve as a reminder to check on reliability of internal compliance routines and as a reassurance that compliance is not foolish.

Due to the difficulties of directly influencing compliance-related behavior by legal penalties, contemporary regulators have set their hopes on reputation damage as a result of the “naming and shaming” effect of publicly sanctioning companies. Substantial reputation damage might result from publicly shaming corporate misconduct, even though there is not much knowledge about the impact in terms of financial and social reputation damage for business (Van Erp 2013).

Compliance Strategies

While official rhetoric is tough on tackling corporate crime and noncompliance, empirical studies show that most agencies regulating business apply enforcement styles that rely on cooperation rather than confrontation; they use advice and negotiation rather than coercion and formal legal action. “Compliance assistance” is the preferred official enforcement strategy of several regulatory agencies (Van de Bunt and Huisman 2007).

Where violation results from organizational shortcomings, negotiation and consultancy as enforcement style can be used to teach a corporation how to comply with regulations. Cooperative regulation is used to stimulate companies to maintain internal compliance management systems. Compliance management systems are viewed as important tools for companies to organize and monitor regulatory compliance.

This might possibly lead to the introduction of “meta-regulation” at a distance: Instead of a “rule-based” approach with detailed prescriptions for business operations, the government creates “principle-based” regulation, containing broad duty-of-care provisions and the obligation for businesses to maintain compliance management systems. This is the case when regulation no longer dictates with what kind of equipment a certain level of emission should be reduced but prescribes a compliance system that ensures a sustainable business operation. Enforcement is then based on reports provided by the companies themselves, and it is aimed at ascertaining whether compliance mechanisms are working effectively. However, such an approach may prove counterproductive in the case of intentional violation (Gunningham 2011).

From the rationality paradigm, lenient enforcement and negotiation were initially rejected. Academic studies on the causes of noncompliance have given legitimacy to addressing causes of noncompliance: organizational incompetence and corporate cultures failing to reinforce the value of compliance.

Whether compliance management systems have had a positive impact on noncompliance has to date received little attention in empirical research. Compliance programs create awareness and give instructions on how to comply. Kaptein (2011) found a positive effect of ethical codes of conduct on compliance. It was observed, how ever, that the effectiveness of corporate compliance officers could be compromised when they report to the business line management, rather than the corporate board. Compliance programs could even be considered to be more cosmetic than real, largely serving a PR function. In some cases, they may actually increase or facilitate corporate offenses, by regulatory capture or keeping up appearances (Friedrichs 2010).

Integrative Models

The criticism of different styles of regulation and enforcement is as old as the propagation of “new,” “smarter,” and more “responsive” models. Academics who suggest these models try to find an optimal mix of compliance and deterrence. A currently adopted model is that of “responsive regulation” (Ayres and Braithwaite 1992). The central notion of “responsive regulation” is that enforcement styles should be tuned to the motives and competences of individual companies laid down in an “enforcement pyramid.” Regulators should start at the bottom of the pyramid, assuming that a company is willing to comply voluntarily. When this is shown not to work, regulators should escalate up to deterrence-oriented strategies. The regulatory pyramid has become the paradigm for a “sequential” combination of compliance and deterrence styles of enforcement. It has been adopted by regulatory and enforcement agencies worldwide.

In academic debate, the model has had a mixed reception. Empirical studies on its use show that it is very difficult to apply the entire pyramid in practice. It is hard to assess the actual motives of companies, it is difficult to shift between enforcement styles, and it ignores other environmental influences on compliance than state-regulation (Gunningham 2011).

As a result of the above insights, new and more sophisticated models have evolved such as “smart regulation”: adopting the principles of responsive regulation, but expanding regulation to third parties as surrogate regulators. As all modern regulatory theories, smart regulation advocates government to facilitate and mobilize other network members rather than direct intervention. Smart regulation has to organize public enforcement so that it can reinforce third parties to help with regulating (Gunningham and Grabosky 1998).

Situational Crime Prevention

Responsive models seem to be primarily oriented at influencing the motivation behind compliance and noncompliance. The bottom of the enforcement pyramid aims at normative motives for compliance (the general attitude that one should comply with regulation), the next step aims at social motives (the realization that others also comply), and the top is aimed at economic motives (increasing the costs of violation).

As motivation has proven difficult to measure, criminology has shifted the focus on studying and changing opportunities. An opportunity perspective focuses on the specific characteristics of a situation, and studies the process through which an offense is committed. In other words, it studies the “how,” rather than the “why.” Situational crime prevention addresses the environments which shape crime opportunities, and the modifications which may diminish criminal opportunities. It identifies five characteristics of criminal opportunity: effort required to carry out the offense; perceived risk of detection; reward from committing the offense situational conditions that may encourage criminal action; and excuses and neutralizations of the offense. Preventive measures are best found in the immediate environment of the crime. Crime prevention, then, becomes a matter of five principles: increasing the effort and risk of detection, reducing circumstantial provocation, and reward and removing excuses.

Situational crime prevention theory departs from the assumption that potential offenders decide whether or not to engage in crime, based on the attractiveness of criminal opportunities, in terms of costs and benefits of crime. White-collar crimes may be committed without clear criminal intent, since regulation is often ambiguous. Nevertheless, offenders are assumed to make more or less rational choices to commit crime, or at least, are to some degree sensitive to the changes in their environment which influence costs and benefits.

Benson and Madensen (2007) propose situational crime prevention theory, which has been widely used to analyze traditional forms of street crime, to white-collar crime. They argue that the analysis of the opportunity structure of white-collar crime through situational crime prevention theory can provide useful starting points for prevention. In fact, they argue that an opportunity perspective is more fruitful than an approach based on offender characteristics or motive: “we suggest that focusing on how is likely to be more productive than focusing on why” (Benson et al. 2009, p. 176). They suggest that crime prevention by means of the alteration of opportunity structures represents “a more fundamental way of thinking about the problem of white-collar crime control” than those of competing schools of thought, in the sense that it “implicitly underlies” other approaches (Benson and Madensen 2007, p. 623). Furthermore, this analysis leads to newer and more effective methods of prevention and control, because potential points of intervention are illuminated. Consequently, they urge white-collar crime scholars to apply the situational prevention approach, and have made the first step with a brief analysis of opportunity structures in health care fraud. Others have tried to apply situational crime prevention to environmental crimes (Dorn et al. 2007). Considering the strong claims by Benson et al., more empirical research is needed to test the usefulness of situational crime prevention theory for prevention of particular types of white-collar crime.

Future Developments And Directions For Research

Most of the relevant variables in explaining corporate compliance and noncompliance have been identified in different strings of research, often in critical response to one another. The main and current research question is how all these relevant variables interact in producing compliance and noncompliance. New and more advanced research designs are needed to unravel the existing process of interaction. It has to integrate measurement by objective indicators which try to establish the causal relations with independent variables focusing on hypotheses about what produces compliance on the one hand, with interpretative approaches which appreciate that compliance and noncompliance are defined in processes of social construction on the other hand. The ambiguities in the definition of compliance could be one of the variables in explaining noncompliance.

Research on the regulation of business and regulatory enforcement has long moved beyond the dichotomy of compliance and deterrence. Scholars are still searching for the optimal mix of enforcement styles. The two-dimensional problem has been expanded to a three-dimensional challenge, surpassing another dichotomy – the dyadic relationship between regulator and the regulated – and by introducing third party regulators. Harnessing actors and resources outside the public sector also fits in situational crime prevention.

Yet, although these more sophisticated models are based on empirical insights as to compliance and noncompliance, the models themselves still have to be tested in empirical research.

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