Corporate Crime

I agree with Mark that "draconian and emotional responses to these problems [of corporate crime], if allowed to take hold, will lead to explosive collateral damage and far worse problems in the future." But I am not proposing either draconian or emotional responses. Nor am I suggesting RICO prosecutions.

When I speak of corporate crime, I am speaking as a lawyer, and I mean behavior that has been defined to a constitutionally valid degree of clarity, declared to be criminal through legislation or judicial construction, and punishable in proportionate and suitable ways if guilt is found under the normal "proof beyond a reasonable doubt" standard.

In a corporate case, whilst the standard of proof is the same as for individuals, what we mean by intentionality, and how we show it, may well be different. The difficulty in prosecuting corporate officials has been in showing that they actually knew that decisions they made within their scope of responsibility would result in crime. To know about the decisions does not go far enough; for conviction, the prosecutor must show that they knew about the criminal result. And proof of that knowledge has been very hard to collect. Indeed, serious doubts have been raised even about the convictions of Enron's leaders.

On the other hand, convicting an organization would not necessarily require showing guilty knowledge by any particular person. Take, for example, a bribery case. Megacorp wants to drill for oil in Xistan, and hires a consultant named Smith. Smith helps the oil minister's son get admitted to Eton, and consultant Jones pays his tuition there. At some point during the boy's first year, Megacorp gets the concession. Smith and Jones were independently on retainer to Megacorp, but each claims that Eton was merely a favor for an old friend. There's no evidence to the contrary. Could either of them be convicted of violating the laws against bribery? Probably not. Could any Megacorp executive? No. Could Megacorp itself? Possibly yes. It paid money to Smith and Jones. They were its agents, seeking the concession. They did favors for the oil minister, and Megacorp got its concession.

Mark properly notes that the misdeeds of Enron's higher level executives cost nearly 100,000 people to lose their jobs. That is a result to be avoided. Would it not have suited the Enron case better to order the corporation to withhold bonuses and stock options from the "C" level executives there for a period of years? Or to have devised some other punishment that would fall on the stockholders and executives, rather than the workers? 

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