Sin and Status

Have those in power always used legal processes to impose their will over ordinary citizens, while supporting those of high status who conspire to short-circuit regulatory processes?

In 2007, long after he retired, my father John Pain wrote a small book, which he called Sin and Status^[1]. (The title was chosen to harmonise somewhat with Sense and Sensibility).

My father had spent most of his career in academia as a Professor of Law in the field of criminal law. He lectured in Africa in the Roman Dutch legal system and in England in the English Common Law, the former being more based on principle (though not as formalised as the Continental Civil Law) and the latter being more based on precedent and example. He found that his students in England could be helped to identify themes amidst the swathes of English examples through the insights he could give them from Roman Dutch principles.

In his book we can read that he was critical of the way the criminal law has been wielded in the areas of 'white collar crime' (carried out by those with higher status) and in 'victimless crime' (carried out by the weak and sinful). Instead of being wielded to convict the powerful for harms they inflict conspiratorially and with intention on their many victims, the criminal law is too-often used to convict the meek of ‘harmless criminality’, which does not harm others. Drug use and prostitution are two examples.

I have selected a few excerpts from the book to illustrate this view.

He begins by questioning whether a people can even be considered free if its government interferes in private activities that do no harm ...

"The only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant." p12, quoted from J.S Mill.

"The outstanding characteristic of Harmless Criminality, frequently called 'victimless crimes', is that they are non-predatory: there is not only no intention to cause harm or disadvantage to another, but there is no injured party and therefore no complainant. Their existence demonstrates the seemingly irresistible urge by some to use the criminal law to dictate how we all should live, thereby constituting a repudiation of Mill's liberal thesis that, provided we cause no injury to others, we should be allowed to do as we please." p29

"It does not seem to be appreciated that over and above the shockingly criminogenic consequences of banning harmless activities, their prosecution violates that dominion or autonomy human beings require over their persons and private space. A society that does not pause at this threshold cannot be considered free." p41

He pointed out the absurdity of wielding the criminal law against 'crimes' that are made up solely of elements that on their own are not illegal! ...

"In short, if illicit sex [sex outside of marriage] is legal, how can selling it be illegal? Prostitution is simply a service, like any other to which we have become accustomed, such as legal advice, hairdressing and those provided by places of entertainment. Solicitation is the same as the activities of any street trader, and keeping a brothel is no different, legally, than having chambers occupied by more than one barrister. As has been pointed out more than once, the act of simply selling a service or offering it for sale cannot convert that service into criminal activity." p43

He then argued that interference in personal liberty was particularly unfair in comparison with the lack of interference in white-collar crime, which includes organisational crime, which can cause profound harm ...

"White-collar crime ... consists of deceptive behaviour causing harm ... [and] is always predatory ... and premeditated: the outcome of a rational choice based on a calculated appraisal of risk and benefit. Finally, the relationship between offender and victim is [often] impersonal ... the same as that of the terrorist bomber who is unconcerned as to the identity of his or her victims." p55

"In any given year, white-collar crime causes proprietary loss many times greater than run-of-the-mill traditional offences such as house-breaking and theft. For example, it is estimated that the fraud involved in the collapse of Enron runs into billions of dollars, more than the GNP of some nation states. But the same can also be said of the body count in death and injury occasioned by white-collar criminality compared with that of all traditional violent crime." p64

And he pointed out that people engaged in victimless crime have been charged with conspiracy, though the perpetrator often acts alone ...

" ... Ms Fleiss unwisely fails to 'cooperate' with the police in the running of the business [of prostitution], and the federal tax authorities decide that they are not getting their cut out of the takings. Charged in the federal court with eight counts of conspiracy and tax evasion, and in the state court for pandering (a medieval word for procuring), she is sentenced to a staggering term of six years' imprisonment (three in each court)." p10

While, in contrast, a charge of conspiracy has seldom been brought in organisational crime (carried out by those in white collars) though it is often conspiratorial by nature ...

" ... in so-called 'white-collar crime', the takeover by a regulatory regime [which has been brought in to replace the criminal law for countering organisational crime] ... has seen [the] demise [of the charge of conspiracy], although arrangements between the usual participants (the company itself, auditors, financial consultants, legal advisors and investment bankers) reek of it." p18

"Before WorldCom and Enron it was thought that we would never again witness the excesses that in 1961 engulfed Westinghouse and General Electric (both household names), involving secret meetings, destruction of evidence, codes and fictitious names, rivalling the very best television coverage of organised crime^[2] - but lacking, of course, that frisson created by armed police and manacled felons. Of the forty-five conspirators implicated, only seven served a prison term - a trifling thirty days apiece - and in the light of progress so far in the current spate of corporate collapse, these can be considered unlucky." p61

Moreover, he thought white-collar crime can have serious social consequences, especially if the powerful and influential are seen to get away with it ...

"Organisational crime violates trust and, as such, may undermine an entire socio-economic system, even democratic government." p26

"The spectacle of the powerful and influential 'getting away with it' is not only demoralising but essentially criminogenic. A sense of injustice, that there is one law for the rich and another for the poor, is dangerously alienating, inculcating feelings of frustration and helplessness, and leading to much serious anti-social behaviour and reactive criminality. The unpalatable truth is that [organisational] crime has flourished not only because of the law's intransigence regarding harmless criminality, an area of personal need and great demand, but also because of its more general failure to be even-handed." p61

"In America, it is alleged, more people die from unnecessary surgical procedures than from firearms. In England, at the same time that Divine Brown [who had served 6 months for victimless activities in the US in 1995, p15], having been kept under surveillance subsequent to her release, was pursued and rearrested in another state on a further prostitution charge, a dentist who had maimed a number of female patients by carrying out unwarranted, though highly lucrative, dental work was merely recalled for 'retraining' .... No prosecution for assault, although permanent damage and disfigurement had been caused, was ever contemplated, and the professional body concerned, which would have unceremoniously struck off any member who touched a female patient inappropriately, admitted after inquiry that they had no idea of his present whereabouts." p65

"The corporate executives implicated in this cause célèbre [the Watergate scandal of 1972 - 1975] continued to preside over their companies (although admittedly, all were fined small amounts of less than two thousand dollars, and two did 'time' of less than three months), whereas, it should be recalled, that Heidi Fleiss was sentenced to three years in gaol on the pandering charge alone, and Divine Brown, bearing in mind her comparatively meagre earnings, paid a much heavier fine and served a term of six months' imprisonment. Obviously, a conspiracy to undermine the independence of the electoral process and thereby threaten the basis of democratic government was considered of less moment than the provision of sexual services ... " p68

The covid response years since early 2020

My father died on the 17th of December 2015 survived by his sons and their families. I cannot say what view he would have taken of the tumultuous years in our recent past. If we adopt the concepts presented in his book, perhaps he would have described them as legal processes wielded to impose the will of those in power to control harmless criminality of ordinary citizens, while little restraint was imposed on the white-collared as they conspired to short-circuit established regulatory frameworks.

He often said that when the mass of the population goes along with a fashionable idea, they are usually wrong. Whatever his view would have been, I am sure it would have been insightful, and I am certain that he would have openly and ferociously debated every detail with his family as information was revealed day by day.

The book can be found here: Sin and Status

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^[1] Sin and Status, A Tale of Anglo-American Criminal Justice. J.H Pain. Published by Athens Press in 2007

https://www.bookdepository.com/Sin-and-Status-J-H-Pain/9781844019410

ISBN13: 978-1-84401-941-0, ISBN10: 1-84401-941-1

^[2] 'Organised' crime includes high-street bank robberies and gangland Mafia protection rackets. It is not the same as 'organisational' crime, which more often is carried out by the white collared in corporate board rooms. Of course, my father agreed with 'organised' crime being targeted by criminal justice.