Every day, the media carry stories of business crimes both large and small. From my office’s indictment earlier this year of a federally-chartered bank for a mortgage fraud scheme, to the U.S. Department of Justice’s crackdown on insider trading in the last few years, the drumbeat of white-collar crime is constant.
This is not new, of course. Think Boesky and Milken. BCCI. Enron. Tyco. And thousands of others, big and small, from bank teller embezzlements to Ponzi schemes.
But while the federal government has reacted to these scandals and circumstances with new policies, laws, and regulations designed to combat ever-changing scams that are limited only by human ingenuity, the near-silence from New York has been striking. Our state, the financial capital of the nation, has done little to adapt its laws to the modern problems white-collar crime presents.
For that reason, in my capacity as president of the District Attorneys Association of the State of New York, I am appointing a New York White-Collar Crime Task Force, comprised of prosecutors, academics, leading lawyers, and other experts to analyze thoroughly the tools available to law enforcement in New York, and make legislative recommendations to strengthen our laws, as needed.
This is common sense, and we need only look at our federal colleagues to see how diligent review and revision of existing statutes enable stronger prosecutions. Even before the financial crisis, the federal government regularly reacted to white-collar crime issues. In the 1990s, for example, criticism was rampant from many corners that the U.S. States Sentencing Guidelines were too lenient in their treatment of fraud crimes. The Sentencing Commission embarked on a five-year study, and in 2001, the government modified the guidelines to strengthen sentences for financial crimes.
At around the same time, a series of major scandals broke, including Enron, Tyco, and WorldCom. Congress responded by enacting the Sarbanes-Oxley Act, which in addition to establishing standards for public company boards and public accounting firms, made a significant contribution in the penal arena. From creating the new crime of securities fraud, to strengthening the obstruction of justice laws, to increasing penalties for mail and wire fraud, Congress responded to these financial scandals in a robust way.
Additionally, the 2009 enactment of the Dodd-Frank Act led the Sentencing Commission once again to amend the guidelines to account for nuances in various types of fraud cases, including, notably, insider trading. This groundswell of activity makes clear that, at the federal level at least, the approach to white-collar crime is continually evolving and constantly attuned to the state of the business world.
Unfortunately, during this period of great federal activity, New York State has done little other than make a few token modifications to a handful of laws. This lack of initiative by policymakers means that New York State prosecutors are fighting 21st century crime with 1970s-era tools, which is ironic in light of the traditional primary role of district attorneys in New York law enforcement.
So where do we start? One good example is the crime of Scheme to Defraud, enacted more than 35 years ago to address shortcomings in the centuries-old crime of larceny, which in fraud cases requires proof of several exacting elements. In enacting the newer law, the Legislature criminalized systematic schemes intended to defraud multiple victims. This was potentially an extremely useful tool in the battle against diverse frauds.
But the utility of this basic anti-fraud statute is marred by its unconscionably low penalties for serious fraud. Whether a defendant obtains more than $1,000 or more than $1 billion as a result of the fraud, he still faces the same penalty, and can be convicted only of the lowest-level felony that New York recognizes. Even after conviction, and no matter the amount involved, there is no requirement that the defendant spend any time in jail.
And the statute is marred further by its requirement in all cases that the scheme be targeted at more than one person, which immediately excludes the myriad frauds against large institutions or government agencies targeted by outsiders.
The reality is that fraud schemes are diverse, often far reaching, and can be very lucrative. It seems like a basic concept—long accepted in New York’s theft laws, and a fundamental principle of the federal guidelines—that the law should contain property thresholds that punish the perpetrators of more serious schemes more seriously.
In the same way, the criminal provisions of New York’s Martin Act, used to combat fraud and false statements in the sale of securities, represent a potentially useful tool undermined by woefully inadequate penalties. Like Scheme to Defraud, violating the Martin Act is either a misdemeanor or the lowest-level felony. But sadly, criminals engaged in large-scale schemes are not deterred by the prospect of unsupervised probation even after conviction at trial.
White-collar crime is not just about fraud, but also about corruption, and New York is a state in which commercial bribery impacts a broad range of crucially important businesses—construction and the sale of securities, to name just two. Unfortunately, in the area of private-sector bribery and kickbacks, where federal law is strong, New York’s felony commercial bribery statute is inadequate because of an economic harm requirement that is almost unique in the United States.
But bribery is about breaches of trust, not theft. When an employee or agent gets a kickback to steer a contract to someone who is lining his pockets, why should we additionally require proof of economic loss when larceny is already a separate crime? The “harm” in a bribery scheme is the double-dealing breach of loyalty, which is not necessarily economically quantifiable.
These are just a few examples of outdated laws that allow white-collar criminals to operate in New York with often-limited consequences. To be fair, New York has, from time to time, added “boutique” white-collar crimes like Residential Mortgage Fraud to its arsenal, and has also provided some additional tools to combat identity theft and tax fraud. But while such changes are helpful and necessary, they should be a baseline for reform, not the endpoint.
New York is the financial capital of this nation. Business, finance, and industry all make their home here, making Wall Street the most important address in the financial world. From the corner bodega to the world’s biggest Fortune 100 corporations, local business in New York is our most important financial resource. We need to bring our white-collar crime laws into the 21st century to protect that asset and our individual citizens.
Cyrus R. Vance Jr. is the New York County District Attorney and president of the District Attorneys Association of the State of New York.