The Latest UNC Scandal and the Possibility of Disparate Treatment

A couple of recent news stories led me to think about the possibility of a particular type of class disparity in the criminal justice system. Here are the two stories:

  • Two big-time UNC fundraisers have resigned. The two were dating. They went on several trips together, at university expense, to locations where one of the fundraisers’ sons was playing college basketball for Notre Dame. Chancellor Holden Thorp has described the trips as “personally driven,” suggesting that they were not legitimate fundraising endeavors.
  • According to auditors, an official with the Department of Public Instruction “claimed more than $3,200 in unjustified travel reimbursements by padding his mileage reports.” The department apparently “plan[s] to seek refunds and impose disciplinary action.”

Both stories involve allegations of financial misconduct by state officials who are relatively high on the food chain. I have seen no suggestion, in reports on either matter, that criminal investigations are underway or that criminal prosecution is a possibility.

Let me emphasize that I don’t know any more about these stories than I’ve read in the news. I don’t know whether a criminal investigation, much less a criminal prosecution, is appropriate in either case. It’s also possible that a criminal investigation is underway in either or both instances and that it just hasn’t been reported.

Having said that, we do have laws against embezzlement and obtaining property by false pretenses. And I wonder whether a UNC bookstore worker who was suspected of fleecing the university out of thousands of dollars, or a school lunchroom worker who apparently misappropriated $3,200, would be allowed to resign or be disciplined without facing a criminal investigation. To generalize away from these specific cases, I’m asking whether financial misconduct committed by people in white-collar jobs is treated differently than misconduct of a similar magnitude committed by people in less prominent positions.

People seem to disagree about this. Some think that it isn’t treated differently, that most employees who steal from their employers are fired, but not prosecuted, regardless of the position held by the employee. In fact, this loss prevention industry publication encourages employers to consider whether “the employer’s cost to prosecute [will] exceed[] the loss caused by the” employee, and suggests that many employers turn away from criminal prosecution based on cost considerations. (Of course, the decision about whether a criminal investigation and/or prosecution is appropriate isn’t solely the employer’s to make.)

Others think that there is a disparity, but that the reason relates to the standard of proof in criminal cases. They argue that relatively minor financial misconduct in white-collar jobs is often hard to prove beyond a reasonable doubt. For example, when an employee claims a lunch with a college friend as a business expense, the employer may be sure enough that the claimed expense is bogus to fire the employee, but a prosecutor might not be sure enough to proceed criminally. Especially where a job involves sales, networking, development, and the like, the line between personal expenses and professional ones may be inherently gray and hard to draw.

Still others think that there is a disparity, but that it is explained, and perhaps justified, by the idea that the loss of a high-profile, well-compensated position and the sullying of one’s professional good name are greater punishments than a court would likely impose on a first-time offender convicted of misappropriating a few thousand dollars.

And of course, others think that there’s a disparity and that it stems from white-collar lawyers and white-collar judges having more sympathy with what the abuse of employment perks by white-collar suspects than they have with theft by blue-collar employees. As this 1940 article put it, “white-collar criminals are relatively immune [from prosecution] because of the class bias of the courts.”

I’m genuinely interested in readers’ thoughts and experiences. Are employees who misappropriate their employers’ money treated differently based on the employees’ position within the organization, and if so, is the disparity justifiable?

7 comments on “The Latest UNC Scandal and the Possibility of Disparate Treatment

  1. Interesting post. Should make for great reading during your tenure review.


  2. With the overwhelmed court systems across the state, cuts to prosecutors’ offices, and reduction in support staff, I think that if there is a whiff of a matter being “civil” in nature rather than “criminal” the tendency is for ADA’s to push such cases into civil court.

    That said, much like the “white collared” criminals in the Catholic Church who often only face internal disciplinary action for the most heinous criminal matters, there is a bias in the criminal justice system when it comes to these kind of crimes committed by persons of means. For every Martha Stewart that gets locked up, there are ten John Edwards that skate by.

    In the bad-old-days before DWI penalties became tougher, it was not unusual to see a defendant of means pay a hefty fine in consideration for a reduced charge of careless and reckless. This disparity plays out on all levels of the court spectrum.

  3. I think there is no question that white collar jobs are treated differently than misconduct of a similar nature committed by people holding lower level jobs. I have seen many criminal reports of embezzlement and larceny by employee committed by regular hourly workers, but I hardly ever see a report made on a white collar job at the same places. Perhaps the embarrassment alone of having a high level employee of a business identified as a thief is enough to persuade the business to ignore criminal prosecution to avoid public disclosure. What bothers me the most is when a government entity such as UNC decides to or at least appears to ignore such an egregious violation of the law. Although I am certainly biased being a law enforcement officer and graduate of NC State University, it is my personal opinion that UNC will not seek any sort of investigation from law enforcement into this embarrassing situation. Although they don’t necessary control a potential investigation or prosecution in such a case, I highly doubt a law enforcement official or district attorney will self-initiate such a momentous controversial task. This is a great post that brings up a subject that is very important and rarely openly discussed. Bring in the SBI for crying out loud!

  4. Jeff-Interesting post. Thanks for writing about this.

  5. There is definitely a difference. While most ADAs and public commentors seem to seek retribution, corporate victims often only seek deterrence. Even if prosecuted, the lunchroom employee won’t make the front page of the N&O which the other makes merely by resigning.

    Furthermore, I think there’s an element of ‘making an example’ out of white collar criminals more than others. Would you write a post about a lunchroom employee being able to resign when some hypothetical administer could be prosecuted?

  6. Sol Wachtler, a New York judge who served prison time, said that high-profile defendants are never treated the same as run of the mill cases. They get treated much better or much worse.

    The clerk who steals from the register will likely plead guilty without consuming much in the way of a prosecutor’s resources, whereas a Mike Easley or John Edwards type defendant will mount a defense that will consume a lot of resources and, if successful, give the prosecutor a black eye.

    BTW I think it is a mistake to reflexively describe the courts as overwhelmed. If you spend a day in District criminal court you’ll see a lot of resources spent prosecuting trespass and panhandling offenses. I often wonder what society gains for the effort spent there.

  7. Very interesting post, Jeff.

    To the extent there is an apples-to-apples comparison involving just taking money, and there are no special political considerations involved, the little guy inevitably gets the hardest road. One indication of the difference is that many people don’t even think that the senior person has committed a crime, but they immediately see that the regular employee has committed one. I was talking about this situation today with a couple of people on campus, and they seemed genuinely surprised when I said that a crime apparently had been committed. I wonder if that perception (crime/no-crime) also breaks down along the lines of class and income. The actions of prosecutors may accurately reflect the views of their constituents.

    Good job raising an interesting question. Just the kind of boldness that we want to see when considering tenure.