No Mind, No Crime?

While street crime is reportedly being brought under control in America's major cities, all indications are that corporate crime and violence continue to skyrocket.
Homicide, robbery and burglary are down across the board, but health care fraud, public corruption, environmental crime, securities fraud are enjoying banner years.
The question increasingly being faced now by scholars, citizen activists and policymakers: What to do about runaway corporate crime and violence?
Many federal and state prosecutors believe that corporate crime should be handled like other crime -- investigate and prosecute it.
But some scholars, like Jeffrey Parker, a professor of law at George Mason University Law School, argue that corporate crime simply doesn't exist and can't exist.
"Crime exists only in the mind of an individual," Parker said recently. "Since a corporation has no mind, it can commit no crime."
Parker argues that a since a corporation is not a person, it should not be treated as people are treated in the criminal law arena.
For this argument, Parker has little support, even among the nation's top white-collar crime defense attorneys.
Why? Corporations realize that if they were to be stripped of their rights to personhood, they would be the big losers. A corporation stripped of its personhood might avoid criminal prosecution, but it would at the same time lose its First Amendment right to speak and associate, its Fourth Amendment right to privacy, and its Fifth Amendment right to protection from double jeopardy.
If corporate crime doesn't exist, what do we call -- and how should we handle -- all of the pollution, corruption, bribery and fraud that corporations create?
Parker argues that "there is no legitimate function of corporate criminal liability that cannot be served equally as well, if not better, by civil enforcement."
At a conference on corporate crime held earlier this year in Washington, D.C., Parker's thesis was challenged head on by Columbia University Law Professor and corporate criminologist John Coffee.
Coffee agrees that in theory, large civil penalties could work as well as criminal penalties in combatting corporate wrongdoing.
But in practice, they don't work as well because "the civil justice system is very slow and much more favorable to defendants than the criminal justice system."
When it comes to allocating blame, assigning responsibility and shaming wrongdoers, the criminal law works much better than the civil law, Coffee argues.
Coffee argues that if corporations were sanctioned exclusively by civil penalties, their wrongdoing would seem "less blameworthy than the conduct of individuals who were still being processed through the criminal justice system."
"Inevitably, there is a hierarchy between the criminal law, which is seen as front page news, and civil lawsuits, which are on page 17 of the business section," Coffee said.
Coffee's point: since the criminal law is saved for society's most egregious acts, denying the ability to criminally prosecute corporations sends the signal that corporate wrongdoing is not as serious as individual wrongdoing.
Michael Rustad, a professor at Suffolk University Law School in Boston, agrees with Coffee that the criminal law plays an important role in controlling corporate misbehavior, but argues that the wall separating the criminal and civil law is crumbling.
Rustad predicts that the new arena will be that of punitive damages, where corporations will increasingly be hit with heavy penalties for wrongdoing deemed more than mere negligence, but less than what the criminal law requires -- intentionally inflicted harm.
Rustad says that corporations rarely, if ever, act maliciously, in the sense that individuals do. Malign neglect is the standard operating procedure in corporate America. And malign neglect, or reckless disregard, is best dealt with by punitive damages.
With corporate crime and violence inflicting far more damage on society than all street crime combined, it would be a mistake to curb punitive damage awards, as corporate lobbyists are seeking to do in state legislatures around the country, or cut off legitimate criminal prosecutions of corporations, as Parker suggests.
We should take a hard look at the costs of granting corporations the rights of persons and citizens. Should they have the right to define the laws under which they live by lobbying legislatures? Should they have the right influence elections?
But corporations can't have it both ways. They can't enjoy the benefits of personhood, while at the same time skipping out on its obligations.