Public Citizen applauds the House Judiciary Committee for taking on the urgent problem of overcriminalization and overincarceration. The lives and well-being of too many young men of color, too many families and too many communities have been devastated by a wrongheaded experiment in throwing massive numbers of people in jail for long sentences for low-level crimes, especially nonviolent and victimless ones. It’s past time to remedy this injustice, and it’s inspiring to see bipartisan commitment to doing so.
But it appears that corporate interests are aiming to hijack the process, under the cover of bipartisan comity, to sneak in measures that would seriously undermine corporate crime prosecution. The House-proposed legislation contains “mens rea” (state of mind) provisions that would make it much harder for prosecutors to criminally prosecute companies that swindle the public, endanger their workers, poison the environment or otherwise imperil consumers.
Most egregiously, the House language violates the basic precept that “ignorance of the law is no defense” and may offer corporations and company executives an “ignorance of the law” defense. Under Section 11(2), prosecutors must affirmatively show that a defendant knew the state of the law, or at least that a reasonable person would have known. This will create enormous problems of proof for prosecutors who choose to bring cases; however, given the challenges that already burden corporate criminal prosecution, in many instances, they will just give up and not prosecute in the first place.
Simply put, the mens rea provision in the House legislation aims to solve a problem that doesn’t exist, in a vehicle where it doesn’t belong.
In fact, issues related to corporate crime are 180 degrees different from those related to street crime.
First, there are far too few, not too many, corporate criminal prosecutions, evidenced most dramatically by the utter failure to prosecute anyone on Wall Street, or any of the financial giants, for the wrongdoing that led to the 2008 crash and ensuing Great Recession. To a considerable extent, deferred prosecutions – in which the Justice Department agrees not to prosecute in exchange for a promise by corporate defendants not to violate the law in the future – have replaced actual prosecutions, undermining any kind of deterrent effect. GM is only the latest, egregious such example.
Second, where nonviolent and victimless crimes don’t directly hurt anyone other than the perpetrator, corporate crime exacts a massive, often violent, toll in lives lost, injuries inflicted, destruction of the environment, consumers ripped off and much more.
Third, unlike street criminals, corporate criminal defendants are powerful and well-resourced. Prosecutors identify with white-collar criminals and generally are reluctant, not over-eager, to prosecute. They fear the collateral consequences of prosecution, such as the impact on jobs and the economy. By contrast, impacts on family and loved ones are rarely a factor in consideration of street crime prosecution. Corporate criminal defendants are typically very able to defend themselves with the best legal counsel that meets or exceeds resources available to prosecutors. And in sharpest contrast to street criminals, corporate criminals are able to shape the criminal law itself, through lobbying, campaign contributions and other activities that influence the establishment of criminal regulatory standards.
Lastly, corporate criminals are the utmost rational actors. Weak enforcement and lax standards, as we have seen over and over, will invite more corporate crime and wrongdoing. Tougher standards with meaningful enforcement will deter corporate criminals. It’s that simple.
These are not esoteric matters. Corporate crime and violence inflicts a horrific toll on our society. There is absolutely no reason for the otherwise laudable criminal justice reform bill to contain any measure to weaken already feeble standards for corporate criminal prosecution.