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NCJ Number: 64633 Find in a Library
Title: CRIMINAL CONSUMER FRAUD - MUST THE GOALS OF DETERRENCE AND COMPENSATION BE MUTUALLY EXCLUSIVE?
Journal: AMERICAN JOURNAL OF CRIMINAL LAW  Volume:7  Issue:3  Dated:(NOVEMBER 1979)  Pages:355-383
Author(s): N M KIRSCHNER
Corporate Author: University of Texas
School of Law
United States of America
Date Published: 1979
Page Count: 29
Sponsoring Agency: University of Texas
Austin, TX 78705
Format: Article
Language: English
Country: United States of America
Annotation: THIS ARTICLE ADDRESSES POLICY QUESTIONS RAISED BY CRIMINALIZING CONSUMER FRAUD AND ARGUES THAT GOALS OF RESTITUTION AND DETERRENCE MUST NOT BE MUTUALLY EXCLUSIVE.
Abstract: CONSUMERS VICTIMIZED BY UNLAWFUL BUSINESS PRACTICES HAVE LEARNED THAT THEY CANNOT EFFECTIVELY USE TRADITIONAL REMEDIES TO REDRESS THEIR INJURIES. THE SEARCH FOR AN ADEQUATE CONSUMER REMEDY HAS FOCUSED ON CIVIL AND CRIMINAL AREAS WITH TWO GOALS TO BE ACHIEVED--COMPENSATION FOR LOSS AND DETERRENCE. CRIMINAL CONSUMER FRAUD HAS BEEN SUBMERGED WITHIN THE CONCEPT OF WHITE-COLLAR CRIME THAT ENCOMPASSES A BROAD RANGE OF BUSINESS PRACTICES AND FOCUSES ON THE OFFENDER RATHER THAN THE OFFENSE. THE TASK OF DETECTING AND INVESTIGATING SUCH FRAUD IS DIFFICULT SINCE FRAUDULENT SCHEMES ARE OFTEN CAMOUFLAGED IN DAILY COMMERCIAL TRANSACTIONS WHICH ARE NOT EASILY DISTINGUISHED FROM NONCRIMINAL BUSINESS ACTIVITIES. FRAUD CASES OFTEN REQUIRE A DETAILED AUDIT OR ECONOMIC ANALYSIS BY TRAINED LAW ENFORCEMENT PERSONNEL. CRIMINAL PENALTIES HAVE SELDOM BEEN INVOLVED IN THE COMMERCIAL SPHERE, BECAUSE OF THE JUDICIAL POLICY OF STRICT CRIMINAL STATUTE CONSTRUCTION. ALSO STATE CRIMINAL LAWS ARE RARELY USED AGAINST CONSUMER FRAUD BECAUSE OF THE COMPETING PRESSURE OF VIOLENT CRIMES ON PROSECUTOR TIME AND THE LIMITED SCOPE OF STATE STATUTES. IN GENERAL, STATE CRIMINAL LAWS ARE BASED ON LARCENY AND NOT FRAUD. SENTENCING OPTIONS UNDER BOTH FEDERAL AND STATE LAWS ARE NOT SUFFICIENT TO DETER CONSUMER FRAUD EFFECTIVELY. EVEN WHEN STATUTES GIVE JUDGES THE AUTHORITY TO IMPOSE LENGTHY IMPRISONMENT, SUBSTANTIAL PRISON TERMS ARE RARELY ADMINISTERED. A LAW PROFESSOR AND WASHINGTON CONSUMER PROTECTION CENTER SUPERVISOR VIEWS CONSUMER FRAUD AS A UNIQUE CATEGORY IN CRIMINAL LAW DESERVING SPECIALIZED ATTENTION AND A SPECIALIZED RESPONSE. HE BELIEVES THAT CRIMINALIZATION OF FRAUDULENT CONDUCT WILL HAVE A BROAD DETERRENT EFFECT. EFFORTS TO ACHIEVE HIS CONCEPT OF STATUTORY BALANCING, HOWEVER, PARTICULARLY THE CONSUMER FRAUD ACT OF 1977, HAVE BEEN UNSUCCESSFUL. IT IS CONTENDED THAT PENAL SANCTIONS ALONE WILL NOT COMPENSATE DEFRAUDED VICTIMS. A MIX OF CIVIL, CRIMINAL, ADMINISTRATIVE, AND PRIVATE REMEDIES IS NEEDED TO PROVIDE THE GREATEST DETERRENCE OF ECONOMIC OFFENDERS, MAXIMUM PROTECTION FOR VICTIMS, AND SATISFACTION OF THE PUBLIC NEED TO SEE JUSTICE ADMINISTERED. TARGET-ORIENTED PROSECUTION, PROPOSED AS A PARTIAL SOLUTION TO THE CRIMINAL FRAUD PROBLEM, IS APPLIED TO THE CONSUMER PROBLEM OF ROLLING BACK ODOMETERS ON USED CARS. CASE LAW IS CITED. (DEP)
Index Term(s): Consumer fraud; Consumer protection; Crimes against businesses; Deterrence; Deterrence effectiveness; Laws and Statutes; Restitution; Victim compensation; White collar crime
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=64633

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