The Real Crime Is What’s Perfectly Legal

“As through this world I travel, I meet lots of funny men. Some will rob you with a six-gun, and some with a fountain pen.”

—Woody Guthrie,  Pretty Boy Floyd The Outlaw

Almost 3 million people were victims of serious violent crime in 1994. But seven years later, that number had been cut in half, and it’s been less than that ever since, even as the U.S. population has grown by 70 million. The burglary rate in 2019 was one-third of what it was in 1994. Yet, that’s not how most Americans see things, according to John Gramlich, a senior writer/editor at Pew Research Center. And the magnitude of crime is just one of many ways we fail to understand it properly.

“In 20 of 24 Gallup surveys conducted since 1993, at least 60% of U.S. adults have said there is more crime nationally than there was the year before,” Gramlich wrote last November. The misperception that crime continues running rampant is a key component of Trumpism, Gramlich noted: “Trump vowed to end ‘American carnage’ in his inaugural address in 2017. This [time], he ran for reelection on a platform of ‘law and order.’”

Of course, serious violent crime actually increased under Donald Trump, though still far below 1990s highs. Misperceptions about crime — how much there is, even what it is, who does it, who’s victimized — have been central to Trump’s politics, and remain central to the GOP today, with its laser focus on the virtually non-existent crime of voter fraud. At the same time, Democrats have been taking steps to fight two examples of crimes not commonly perceived as such — wage theft (targeting low-income workers most frequently) and high-income tax evasion — both white collar crimes that Republicans have helped to enable.

While violent crime and property crime dominate most public discussions, criminologists commonly recognize at least three other major categories: white-collar crime, organized crime, and “moral,” consensual or victimless crime. The common fixation on violent and property crime presents a distorted picture. But even in this regard, police aren’t terribly effective. “Most violent and property crimes in the U.S. are not reported to police, and most of the crimes that are reported are not solved,” Gramlich reported. Across the years he considered — 1995 to 2015 — police “solved” 18% to 25% of violent crimes, and 5% to 8% of property crimes. But conviction rates (even with plea deals) are even lower.

“Crime” as rationale for social division 

To help understand where we are, Dr. Julilly Kohler-Hausmann’s book, Getting Tough: Welfare and Imprisonment in 1970s America shows how mass incarceration, the War on Drugs, and the roll-back of the welfare state were intertwined phenomena, which helped create today’s sharpened political divide, fueled in part by a narrowed focus on violent and property crime. “Advancing tough policies helped absolve government of responsibility for marginalized people’s well-being and accountability to their voices,” she wrote.

The divide between “worthy” and “unworthy” citizens is perhaps best captured in the realm of consensual, victimless, or so-called “moral crimes,” like drug or alcohol use, gambling, prostitution, etc. For example, Blacks and whites use drugs in similar proportions, but Blacks are far more often arrested, charged, tried and imprisoned. According to the Drug Policy Alliance, “Nearly 80% of people in federal prison and almost 60% of people in state prison for drug offenses are Black or Latino.” While just over 10% of people over 12 were victims of a property crime in 2019, 11.7% of them used an illegal drug in the previous month in 2018, according to the National Institutes on Drug Abuse (lifetime use was 49.2%). Even ignoring multiple uses, this makes drug use alone 12 times more common than all property crimes, however minor. When such commonplace acts are criminalized, selective criminalization is inevitable. The fact that it’s racially selective reflects broader systemic racism — which is the broader focus of the Black Lives Matter movement.

“I do believe that the social organizing, particularly the Movement for Black Lives, has profoundly unsettled the assumptions that masqueraded for so long as ‘commonsense’: that policing and prisons are the inevitable response to social harm,” Kohler-Hausmann told Random Lengths News. “While there were always voices challenging the exponential growth in the penal system, calls for defunding the police and prisons are now being heard and debated even in Congress and mainstream media outlets. This is remarkable historically and a testament to power of recent organizing and mobilization.”

The case of wage theft

Such calls also raise the basic question of what qualifies as a crime, and why. In 2019, there were 122,641 incidents of domestic violence, compared to 192,610 incidents of stranger violence, according to the National Crime Victimization Survey. Yet, for most of American history, domestic violence wasn’t even regarded as a crime, unless it reached the level of homicide, and parents hitting children is commonly seen as “discipline,” not “violence,” so that incident figure is surely too low (children under 12 are not included).

Property crimes are far more common than violent crimes — there were three times as many serious property crimes from 2015 to 2019, according to the NCVS. But what qualifies as serious? Or even a crime?  A 2017 study by the Economic Policy Institute, based on data from 2013 to 2015, found that employers stole an estimated $15 billion through one form of wage theft alone: paying less than the legal minimum wage. The number of victims was about 4.5 million — roughly equal to the number of victims of all serious crimes in the NCVS for that year. That works out to roughly $3,300 per victim, well above the threshold for felony theft in every state. (It runs from $200 in New Jersey to $2,500 in Texas and Wisconsin. It’s $1,500 or less in 46 states.)  So going by money alone, this would almost double the number of serious crimes.

There’s just one thing. Wage theft isn’t even considered a crime, outside of two states — Colorado and Minnesota — that made it a crime in 2019. It’s a tort — something you can be sued for, but not sent to jail, or even fined for. A bill introduced in the California Assembly by Lorena Gonzalez (AB 1003) would bring the number of states to three — but it has yet to pass.

After the EPI study was published, Amy Traub, an associate director at Demos, a progressive think tank, wrote a report comparing the scope and impact of wage theft with that of shoplifting in the retail industry. The losses due to minimum wage theft and shoplifting are virtually identical, she noted: $15 billion vs. $14.7 billion. But the penalties are wildly disproportionate. 

While shoplifting can land you in prison, “The greatest civil federal penalty for wage theft is repaying the amount in stolen wages and an equal amount in liquidated damages,” the report stated. “Even for repeat or willful violations, the maximum penalty is $1,100.”

The amounts spent on crime deterrence are similarly lopsided. “Even though wage theft is more prevalent than shoplifting and can have catastrophic consequences for working people, their families, and communities, we devote far fewer resources to combatting it than to surveilling and punishing people suspected of shoplifting,” Taub said.

As for the broader implications, she said, “One powerful example of structural racism in our economy is the difference between how our society treats the crimes committed by powerful corporations against working people — especially Black and brown workers who are more likely to have wages stolen — and how we treat much smaller infractions like shoplifting, where people of color are more likely to be racially profiled. 

Dark side of white collar crime

Wage theft is just one example of corporate white collar crime. The online book, Social Problems: Continuity and Change, published by the University of Minnesota Libraries, provides a broader overview:

The toll of white-collar crime, both financial and violent, is difficult to estimate, but by all accounts it exceeds the economic loss and death and injury from all street crime combined. These figures compare to an economic loss of less than $20 billion from property crime and a death toll of about 17,000 from homicide. 

Such comparisons are rarely made in discussions of crime, in large part because of the agenda-shaping processes described in Getting Tough. But it actually vastly understates the case. Consider just one unsafe product: cigarettes.  According to the Centers for Disease Control and Prevention, “Cigarette smoking is responsible for more than 480,000 deaths per year in the United States, including more than 41,000 deaths resulting from secondhand smoke exposure. This is about one in five deaths annually, or 1,300 deaths every day.”

None of those deaths are considered a homicide, of course. But they are just as dead, anyway. And there are so many more of them. And tobacco companies have been knowingly pushing them despite evidence of their deadly impact from as early as 1938. As for economic costs, the CDC places them as “more than $300 billion a year,” in medical costs and lost productivity. What’s more, state governments are only spending a small fraction of what they should to prevent these deaths and losses.

Democrats are trying to do something about another significant form of white collar crime: tax evasion. Since 2010, Congressional Republicans have slashed the Internal Revenue Service’s budget, reducing its number of auditors below 10,000 for the first time since 1953, when our economy was one seventh its current size. The number of audits dropped 42% from 2010 to 2017, and even basic functions — like pursuing people who don’t file returns — have plummeted.

It’s now estimated that the tax gap — the amount owed, but not paid — will be anywhere from $7 to $10 trillion over the next 10 years. “Right now, the wealthiest one percent are responsible for roughly 70 percent of the ‘tax gap’ — the difference between taxes owed and taxes paid. It’s time every American pay their fair share.”  Rep. Ro Khanna said in a Feb. 17 press statement. He was announcing the Stop CHEATERS Act that he said would “raise an estimated $1.2 trillion in revenue over 10 years, by investing $100 billion into the IRS over the next decade.”

That would still leave an enormous tax gap, but it would reverse a decade of GOP complicity in helping wealthy tax cheats break the law. What’s really needed, though, is a much more expansive understanding of crime, focused on proactive protection from harm — whatever form it takes.