Ch 2: ‘A Crime by Any Other
The Rich Get Richer examines a
variety of ways Americans are harmed to assess the greatest dangers to our
well-being. Not all of these harmful acts are crimes, but we argue these
analogous social harms share many elements of criminal conduct.
examines how what we see as ‘dangerous crime’ is socially created. The criminal Justice system acts as a carnival
mirror that magnifies the threat of street crime while minimizing the
harms from occupational hazards, health care, chemicals and poverty.
In answering the question, ‘What’s
In A Name?’ this chapter (1) analyzes the ‘typical criminal’ to show
that criminal justice is a ‘creative art’; it creates the social
reality of crime in a way resembling the distortions of a carnival
mirror (2) responds to the Defender of the Present Legal Order about why
the actions of the powerful are rightly serious crimes (3) reviews
evidence about the extent and seriousness of many different harms.
Carnival Mirror and the Reality of Crime
Criminologist Richard Quinney (among others) has
noted that crime is produced by a behavior and a law subjecting
the behavior to punishment. The criminal law is thus an appropriate
topic for investigation because it is the result of human decisions (and
a political process) rather than reflecting an objective reality. We
believe that there are real harms, so the criminal law does not create
crime from nothing. Instead, the criminal law does not provide an
adequate ‘mirror’ of injurious acts; it seriously distorts the
relationship between crime and harm the way a carnival mirror in a fun
house distorts the image of people standing in front of it. Street
crime gets magnified and white collar crime becomes smaller.
With this background, The Rich
Get Richer questions the notion that the ‘typical criminal’ is
young, urban, poor, and minority. We argue that this image is created
through a series of decisions by people in the criminal justice system
and it is these decisions that serve to filter or create the reality of
crime we see. Specifically, the social reality of crime is created by
the decisions of (a) legislators about what to define as crime (b)
police and prosecutors about whom to arrest and charge (c) judges and
juries in conviction (d) sentencing judges about the appropriate
punishment (e) the media in what to report as a ‘crime’ and an ‘accident’
and (f) all these decisions taken together.
2. Objections by the Defender of the
Present Legal Order
The Rich Get Richer’s argument is based on the
idea that some of the most injurious acts are not included in the
criminal law. He recognizes others might feel the criminal law does
reflect the worst social harms and that corporate violence does not rise
to the same level because: (a) executives do not purposely
try to harm people, (b) that indirect harm is not as bad as direct
harm, (c) injuries occurring in the course of legitimate productive
activity are not as bad as injuries from criminal acts and (d) people
freely consent to many hazards, such as occupational exposure. Please
note that we do not believe these statements – we are laying out
what someone else (the defender) would likely see as the objection to his argument.
Chapter 2 argues against all of these propositions for the reasons below.
A. Intent: The
behavior of executives does not fall into the category of premeditated
murder, but many actions are done with knowledge of, or reckless
disregard for, the harms that might happen. Even in cases where the
executives acted negligently, the act still falls within
the scope of the criminal law and rather than a regulatory
to face crime might be worse because it inflicts more terror, but the
basic issue is the injury done – for example that someone died or
someone else unfairly had money or property taken. There
is a difference between the way the two harms are inflicted, but not
enough to make one a felony and the other a regulatory offense.
C. Legitimate productive
risks are inherent in legitimate productive activity, but society can
protect people from unnecessary or excessive risk; it can protect
workers from being beaten to make them work faster and it can protect
children from exploitation involved in 'legitimate productive activity'.
An executive who ignores these laws set up to protect innocent people
commits a crime, even if he is engaged in legitimate productive
D. Free Consent: Many
people do not know about the hazards in a workplace to freely consent to
the dangers. There is also not equal power to negotiate, so the
‘free’ consent is problematic. The job market has barriers, glass
ceilings and In some places there are few
employment opportunities, further escalating the coercion to take a job.
To get a sense of the many corporate
wrongs that are being perpetrated but frequently do not appear in the
Getting Tough on Corporate Crime?
Enron and a Year of Corporate Financial
Scandals by Paul Leighton and Jeffrey Reiman
By Any Other Name
In the rest of the chapter, we
provide evidence on the extent and seriousness of many harms that are
more likely to befall the average American than street crime. When
comparing these to street crime, please keep in mind that many people
have a distorted perception of crime from media coverage that gives
disproportionate attention to the worst and the most unusual crimes.
Most crime is minor property crime and most ‘violent crime’ takes
the form of simple assaults involving bruises (frequently perpetrated by
people who know each other getting drunk together and starting a fight).
Safety and Health Administration is the federal agency with
oversight responsibility in this area, and the Centers
for Disease Control also maintains information, including Women's
Work Safety & Health.
When Workers Die:
U.S. Rarely Seeks Charges for Deaths in Workplace (New York
Times report via Reclaim Democracy.org)
of Labor: Illnesses, Injuries & Fatalities
Handle Blog - great public health health info!
This category includes work-related deaths and
illnesses (cancer, black lung, etc). Many of the figures we are forced
to use underestimate the amount of illness and death because insurance and
liability factors shape the reporting environment for industry. One of the
fastest growing categories is repetitive motion injuries such as carpal
Citizen has an ‘information’ menu that lists several
health related topics, including HMO accountability.
Corruption in Drug Research
& Medicine, along with the blogs pharmagossip
and whistle-blower Peter
Rost cover health care concerns. .
National Academy of Science’s Institute of Medicine released “To Err Is
Human: Building A Safer Health System” concluding that 98,000 die
each year because of medical errors – and at a cost of $29 billion. Consumer
Watchdog ran an item on this report and Hospital complications take huge toll More than 32,000 deaths and $9 billion in costs a
year (MSNBC.com, 10/2003).
Included here are injuries
and deaths from improper medical care, unnecessary surgery, reactions to
prescription drugs or their interactions. Although this chapter does not include
it, many would also add into this category harms done by the denial of
care by Health Maintenance Organizations (HMOs).
include the American Cancer
Society; thetruth.com is
the website of the group that sponsoring televised anti-tobacco advertisements. The Center
for Science in the Public Interest (CSPI) is an education and advocacy
nonprofit focusing on improving the safety and nutritional
quality of our food supply. The National
Institute of Environmental Health Sciences carries on research about
environmental related disease, and the Environmental
Protection Agency (EPA) makes much of the policy. The Natural
Resources Defense Council is one of several non-governmental
organizations (NGOs) concerned about clean water and air.
We include in
this category a variety of cancers and diseases caused by environmental
factors, especially pollution, toxic wastes, cigarettes, food additives
See also tobacco
info from Leighton & Reiman's Criminal Justice Ethics
Law Center on Homelessness & Poverty defends the legal and
civil rights of homeless people, provides education for homeless children, and
provides information about homelessness. Large numbers of children are
also in poverty, which is a concern of the Children’s
Defense Fund. The Dept of Health and Human Services released a report
In America Tied to Income and Education. Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care
(2003, National Academy of Science- full text)
A Shared Destiny: Community Effects of Uninsurance (2003)
by the Board on Health Care Services and National Institute of Medicine
(full text online). See also America's Uninsured: A Closer Look
(full text, National Academy of Science Press) and Care Without Coverage: Too Little, Too Late
Reiman argues that whatever
caused inequality in the past is less important than our failure to try to
remedy it, and because society allows it to exist we have some
responsibility for the harms that happen to people at the bottom: higher
infant mortality, more sickness, shorter life expectancy, no medical
insurance, etc. In the U.S., income and wealth are highly correlated with
race, so the harms discussed in this section have a disproportionate
impact on minorities.
Product Safety Commission is the federal agency that sets standards and
issues recalls (see recalls
for children's toys or their other recall
Reports magazine is an independent organization that tests a wide
variety of products. They are notable because they pay for their products,
do not accept free samples, and will not let their findings be used in advertisements. Their website has a section of product
recalls that is
updated monthly. The National
Consumer’s League is an
advocacy group for consumers. The National
Highway Traffic Safety Administration is the federal agency
specifically responsible for vehicles; their website contains information
about equipment, recalls, safety problems and issues, testing results,
regulations, and standards. Also, check out the Consumer
Federation of America.
Reiman does not
directly count in the number of Americans injured by unsafe and defective
products, but this problem is sizeable. Firestone,
for example, had to recall some of its tires which were implicated in over
100 deaths. There are a surprising number of other products that are
recalled without much media attention or notice.
Justice Department Guidance on Prosecution of Corporations
(1999 Memo of Eric Holder):
I. Charging Corporations: General
A. General Principle: Corporations should not be treated leniently because of their artificial nature nor should they be subject to harsher treatment. Vigorous enforcement of the criminal laws against corporate wrongdoers, where appropriate, results in great benefits for law enforcement and the public, particularly in the area of white collar crime. Indicting corporations for wrongdoing enables the government to address and be a force for positive change of corporate culture, alter corporate behavior, and prevent, discover, and punish white collar crime.
B. Comment: In all cases involving corporate wrongdoing, prosecutors should consider the factors discussed herein. First and foremost, prosecutors should be aware of the important public benefits that may flow from indicting a corporation in appropriate cases. For instance, corporations are likely to take immediate remedial steps when one is indicted for criminal conduct that is pervasive throughout a particular industry, and thus an indictment often provides a unique opportunity for deterrence on a massive scale. In addition, a corporate indictment may result in specific deterrence by changing the culture of the indicted corporation and the behavior of its employees. Finally, certain crimes that carry with them a substantial risk of great public harm, e.g., environmental crimes or financial frauds, are by their nature most likely to be committed by businesses, and there may, therefore, be a substantial federal interest in indicting the corporation.
Charging a corporation, however, does not mean that individual directors, officers, employees, or shareholders should not also be charged. Prosecution of a corporation is not a substitute for the prosecution of criminally culpable individuals within or without the corporation. Further, imposition of individual criminal liability on such individuals provides a strong deterrent against future corporate wrongdoing.
IV. Charging a Corporation: Pervasiveness of Wrongdoing Within the Corporation
A. General Principle: A corporation can only act through natural persons, and it is therefore held responsible for the acts of such persons fairly attributable to it. Charging a corporation for even minor misconduct may be appropriate where the wrongdoing was pervasive and was undertaken by a large number of employees or by all the employees in a particular role within the corporation, e.g., salesmen or procurement officers, or was condoned by upper management.
B. Comment: Of these factors, the most important is the role of management. Although acts of even low-level employees may result in criminal liability, a corporation is directed by its management and management is responsible for a corporate culture in which criminal conduct is either discouraged or tacitly encouraged. As stated in commentary to the Sentencing Guidelines:
Pervasiveness [is] case specific and [will] depend on the number, and degree of responsibility, of individuals [with] substantial authority . . . who participated in, condoned, or were willfully ignorant of the offense. Fewer individuals need to be involved for a finding of pervasiveness if those individuals exercised a relatively high degree of authority. Pervasiveness can occur either within an organization as a whole or within a unit of an organization.
V. Charging the Corporation: The Corporation's Past History
A. General Principle: Prosecutors may consider a corporation's history of similar conduct, including prior criminal, civil, and regulatory enforcement actions against it, in determining whether to bring criminal charges.
B. Comment: A corporation, like a natural person, is expected to learn from its mistakes. A history of similar conduct may be probative of a corporate culture that encouraged, or at least condoned, such conduct, regardless of any compliance programs. Criminal prosecution of a corporation may be particularly appropriate where the corporation previously had been subject to non-criminal guidance, warnings, or sanctions, or previous criminal charges, and yet it either had not taken adequate action to prevent future unlawful conduct or had continued to engage in the conduct in spite of the warnings or enforcement actions taken against it.
VII. Charging a Corporation: Corporate Compliance Programs
A. General principle: Compliance programs are established by corporate management to prevent and to detect misconduct and to ensure that corporate activities are conducted in accordance with all applicable criminal and civil laws, regulations, and rules. The Department encourages such corporate self-policing, including voluntary disclosures to the government of any problems that a corporation discovers on its own. However, the existence of a compliance program is not sufficient, in and of itself, to justify not charging a corporation for criminal conduct undertaken by its officers, directors, employees, or agents. Indeed, the commission of such crimes in the face of a compliance program may suggest that the corporate management is not adequately enforcing its program. In addition, the nature of some crimes, e.g., antitrust violations, may be such that national law enforcement policies mandate prosecutions of corporations notwithstanding the existence of a compliance program.
B. Comment: While the Department recognizes that no compliance program can ever prevent all criminal activity by a corporation's employees, the critical factors in evaluating any program are whether the program is adequately designed for maximum effectiveness in preventing and detecting wrongdoing by employees and whether corporate management is enforcing the program or is tacitly encouraging or pressuring employees to engage in misconduct to achieve business objectives...Prosecutors should therefore attempt to determine whether a corporation's compliance program is merely a "paper program" or whether it was designed and implemented in an effective manner. In addition, prosecutors should determine whether the corporation has provided for a staff sufficient to audit, document, analyze, and utilize the results of the corporation's compliance efforts. In addition, prosecutors should determine whether the corporation's employees are adequately informed about the compliance program and are convinced of the corporation's commitment to it.
VIII. Charging the Corporation: Restitution and Remediation
A. General Principle: Although neither a corporation nor an individual target may avoid prosecution merely by paying a sum of money, a prosecutor may consider the corporation's willingness to make restitution and steps already taken to do so, as well as other remedial actions such as implementing an effective corporate compliance program, improving an existing one, and disciplining wrongdoers, in determining whether to charge the corporation.
IX. Charging the Corporation: Collateral Consequences
A. General Principle: Prosecutors may consider the collateral consequences of a corporate criminal conviction in determining whether to charge the corporation with a criminal offense.
B. Comment: One of the factors in determining whether to charge a natural person or a corporation is whether the likely punishment is appropriate given the nature and seriousness of the crime. In the corporate context, prosecutors may take into account the possible substantial consequences to a corporation's officers, directors, employees, and shareholders, many of whom may, depending on the size and nature (e.g., publicly vs. closely held) of the corporation and their role in its operations, have played no role in the criminal conduct, have been completely unaware of it, or have been wholly unable to prevent it. Further, prosecutors should also be aware of non-penal sanctions that may accompany a criminal charges, such as potential suspension or debarment from eligibility for government contracts or federal funded programs such as health care. Whether or not such non-penal sanctions are appropriate or required in a particular case is the responsibility of the relevant agency, a decision that will be made based on the applicable statutes, regulations, and policies.
Virtually every conviction of a corporation, like virtually every conviction of an individual, will have an impact on innocent third parties, and the mere existence of such an effect is not sufficient to preclude prosecution of the corporation.
document, via Federalist Society. Note that these guidelines apply to
charging the corporation as opposed to charging officers,
executives or other individual agents of the corporation.
Report Recommends Guaranteed Health Care Coverage
By Rob Stein (Washington Post 14 January 2004): Culminating the most detailed, authoritative examination of the impact of leaving millions of Americans without health insurance, a committee of the academy's prestigious Institute of Medicine (IOM) for the first time formally recommended that the United States guarantee health insurance for every citizen.
"The lack of health insurance for tens of millions of Americans has serious negative consequences and economic costs not only for the uninsured themselves but also for their families, the communities they live in, and the whole country," the 16-member committee concluded, after more than three years of research that produced six reports. "The situation is dire and expected to worsen. The Committee urges Congress and the Administration to act immediately to eliminate this longstanding problem."
[Article notes 43 million Americans are uninsured; 18,000
Americans die unnecessarily each year because they lack health
insurance. The free full text of this report, Insuring America's Health: Principles and Recommendations
is available from the National Academy of Science website, with additional
information from the Institute of Medicine website]
Health & Safety Information on Household Products
(from Food & Drug Administration)