Corporate criminal law is not given sufficient consideration by Congress, the White House, and the Federal Reserve, allowing these executives to “get away with it.”
By Ralph Nader
Crimes without criminals was not a subject of study when I was in law school. Both were considered part of the same illegal package. That was before notorious corporate lawyers and a cash register Congress combined to separate economic, health and safety crimes from corporate liability, incarceration and deterrence.
Lawlessness is now so rampant that a group of realistic law professors, led by Professor Mihailis E. Diamantis of the University of Iowa School of Law, argue that there is no such thing as corporate criminal law. I say “realistic” because their assertion that corporate criminal law, in fact, does not exist, is not widely recognized by their peers.
Most Americans know that none of the Wall Street executives responsible for the lies, deception, and fake investments they sold to millions of trusted investors have been prosecuted and sent to jail. “They got away with it,” was the common refrain during the 2008-09 Wall Street meltdown that plunged our economy into a deep recession that led to massive job losses and the plundering of the economies of dozens. millions of Americans.
Not only did the Wall Street barons evade the sheriff, but they got an obedient Congress, the White House and the Federal Reserve to guarantee billions of dollars to bail them out, implicitly warning that the big banks, brokerage firms and d ‘other giant financial companies were simply’ too big to fail. They had the economy by their throats and taxpayers’ money in their pockets. Also, the Wall Streeters posed as bandits while the people of Main Street suffered.
All of this and more made up a rare symposium hosted by Professor Diamantis last year at Georgetown Law School. (See: https://www.corporatecrimereporter.com/news/200/imagining-a-world-without-corporate-criminal-law-symposium/). He wrote that “the economic impact of corporate crime is at least twenty times greater than all other criminal offenses combined”, citing conservative FBI estimates. It’s not just economics, he continued: “Academics, prosecutors and courts are increasingly recognizing that brand companies also commit a wide range of ‘street crimes’: homicide, arson , drug trafficking, dumping and sex crimes.”
The litany of corporate wrongdoing ranges from polluting air and drinking water, to spilling microplastics that end up inside humans, to promoting deadly opioids that have caused hundreds of thousands of deaths, providing millions of accounts or products to customers under false pretenses or without consent, often by creating false records or misusing customer identities (Wells Fargo), manufacturing motor vehicles faulty, producing contaminated food, allowing software failures resulting in crashes of two Boeing 737 MAX aircraft with 346 fatalities. (See, Why not jail? By Rena Steinzor).
People don’t need law professors to see what’s happening to them and their children. People laugh when they hear politicians solemnly declaring that “no one is above the law”, advocating “the rule of law” and “equality before the law”.
By far the greatest number of preventable deaths and serious injuries in the United States stem from deliberate, negligent or corner-cutting corporate crime under the direct control and management of CEOs and corporate presidents, many of whom transform $10,000 per hour over a 40-hour week.
Five thousand people die each week in hospitals due to “preventable problems”, documents a study by the Johns Hopkins University School of Medicine. The EPA estimates that approximately 65,000 deaths per year are due to air pollution; OSHA has estimated about 60,000 work-related deaths due to illnesses and injuries in the workplace. This carnage does not include the much higher number of people suffering from disease and injury.
This range of corporate destruction was outlined thirty-four years ago by Russell Mokhiber in his classic book, Corporate Crime and Violence: The Power of Big Business and the Abuse of the Public Trust (Sierra Club, 1988).
What is Congress and the White House saying and doing about this growing wave of corporate crime? Say little and do nothing. Corporate criminal law enforcement budgets are ridiculously paltry. The Department of Health and Human Services recovers less than three percent of the estimated $100 billion a year stolen from Medicare and Medicaid. There are too few cops on the trail of corporate crime, and the White House and Congress are unwilling to address this problem.
Congress doesn’t hold broad hearings on corporate crime, except when a dust hits the headlines like the recent tainted baby formula from Abbott’s unsanitary factory in Sturgis, Michigan.
It’s remarkable because as of January 2021, two of the few lawmakers who speak out against corporate crime, Sen. Richard Blumenthal (D-CT) and Sen. Sheldon Whitehouse (D-RI), are both deputy chairmen. -commissions of the Senate Judiciary Committee.
There are major gaps to fill and update in inadequate federal corporate criminal law. Some regulatory agencies, such as the FAA (aviation) and NHTSA (automotive safety) have no criminal penalties whatsoever for willful and knowing violations that directly result in death.
Then there’s the patsy Department of Justice (DOJ). For years, we’ve been asking DOJ officials to ask Congress to fund a corporate crimes database (like the Street Crimes Database). Attorney General Merrick Garland won’t even respond to letters about it. For years, scholars like Columbia law professor John Coffee have urged the DOJ to stop settling the few cases they bring against corporate crooks with weak “deferred prosecution agreements” or of non-prosecution”. These deals involve modest fines, no jail time for the company bosses, and some sort of temporary probation for the company.
Corporate attorneys play the DOJ like a harp knowing that the Department has a small budget to prosecute corporate crimes and that many DOJ attorneys seek lucrative jobs at these corporate law firms, after several years of government service. Any a many giant corporate law firms have more attorneys than all of the attorneys working on corporate crime at the Department of Justice.
Professor Diamantis, W. Robert Thomas and their colleagues are prolific authors of law review articles. They argue for a range of effective penalties that will deter recidivism, which is rampant. They probe the restructuring of corporate hierarchies of the privileges and immunities of the law. They advocate for updating the outdated federal criminal code to match new technology/internet/artificial intelligence (AI) violations.
However, until these scholars manage to carve out a place in the mainstream media to reach enough citizens and push this “law and order” agenda into the hands of election candidates, the ideas they put forward will flow primarily between them indefinitely.