How, then, can such ambiguity be reduced? A number of
reforms could certainly be considered: We could insist that legislatures
avoid criminalizing conduct the moral wrongfulness of
which is the subject of serious controversy. We could require legislatures
to distinguish clearly between inchoate and completed
conduct, and insist on a showing of mens rea for all crimes. We
could endeavor to define the harms caused by, and the victims
of, white collar crime more clearly than is done under current
law. We could seek ways to integrate white collar crime more
fully into our criminal codes, create sentencing parity between
comparable white collar and conventional offenses, and require
greater evenhandedness in terms of prosecutorial and judicial
attitudes. We could demand that conduct resulting in criminal
liability be distinguished more clearly from conduct resulting in
civil liability. And we could formulate rules to determine more
clearly how criminal responsibility should be attributed to individuals
working within large organizations.
But even if all of these reforms could be effected, there
would, I believe, remain an unavoidable element of moral ambiguity
deeply embedded in the fabric of white collar criminal law.