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Avoiding Corporate Crime

The Unmentionable Topic

by RUSSELL MOKHIBER

There’s some extra space in the AP Stylebook now that it’s editors have eliminated the term “illegal immigrant.”

I propose that AP replace it with “corporate crime.”

There’s little question that corporate crime — pollution, corruption, fraud, reckless homicide — inflicts far more damage on society than all street crime combined.

Yet, it is rarely talked about in the mainstream press.

Corporate Crime Reporter recently completed news search of the term “corporate crime” in all news items since the beginning of the year and came up with 430 mentions.

Fully 90 percent of the mentions are from overseas outlets — predominantly from Australia, Canada and the UK.

We found only 42 mentions by U.S. news outlets — most of them smaller newspapers — like the Record and Clarion in Beaverton, Michigan or the Eagle Tribune in North Andover, Massachusetts — or blogs like the FCPAProfessor, CT Blue or CounterPunch.

About 14 of the 42 mentions came from mainstream outlets — with three of the 14 appearing in a New York Times blog.

When mainstream news outlets did use the phrase “corporate crime,” it was mostly in reference to corporate crime outside the United States.

CNN did a report that mentioned corporate crime in Russia.

CNN International did a show that reference corporate crime in China.

The New York Times ran an op-ed that talked about the possibility of prosecuting corporate crime in Africa.

We found only one mainstream U.S. story that had the phrase “corporate crime” in the headline.

That was a New York Times headline titled “Top Prosecutor of Corporate Crime to Resign.”

The story was about Lanny Breuer, the head of the Justice Department’s Criminal Division, resigning.

The irony is that Breuer was the target of two major news magazine shows — one by 60 Minutes titled “Prosecuting Wall Street” and one by PBS’ Frontline titled “The Untouchables” — that brought into sharp focus Breuer’s failure to criminally prosecute any big Wall Street bank or high level executive for the 2008 financial meltdown.

Breuer now back at his old law firm — Covington & Burling — taking down $4 million a year defending corporate criminals.

Not that Covington uses the phrase “corporate crime.”

Covington calls the practice “White Collar Defense and Investigations.”

(Competing laws firms are more honest about it. Jones Day calls their practice “Corporate Criminal Investigations.”)

But top federal prosecutors rarely use the phrase “corporate crime.”

I’ve found only one instance in which Eric Holder has used it in his three years as Attorney General.

It apparently slipped out earlier this year when Holder was asked a question about prosecuting individual executives.

“We’re gonna make some news with regard to holding individuals responsible for things we tend to think of as corporate crimes,” Holder said.

Note — Holder said we’re going to hold individuals responsible — not hold corporations responsible.

In fact, Holder has perpetuated a system that fails to hold corporations responsible.

Instead of criminally prosecuting corporations and securing guilty pleas, the Department for the most part now settles major corporate crime cases with non prosecution and deferred prosecution agreements.

This undermines deterrence and sends the message that we have in a two tiered criminal justice system — one for powerless individual street criminals — who will go to jail if they commit crimes — and one for powerful corporate criminals — who will not be forced to plead guilty if they commit crimes.

And it’s not just the Department of Justice.

For decades now, the Securities and Exchange Commission (SEC) has settled major corporate cases with consent decrees in which the corporation “neither admits nor denies” violating the law but consents not to violate it again.

These decrees are now being challenged by federal judges — most notably Judge Jed Rakoff in New York and Judge Richard Leon in Washington, D.C.

Just because mainstream news outlets and federal prosecutors rarely mention the phrase “corporate crime” and just because we don’t secure admissions and guilty pleas against the corporate criminals doesn’t mean corporate crime doesn’t exist in the United States.

It just means that the powerful have flooded the public sphere and defined the terms of the debate.

On May 3 at the National Press Club, Corporate Crime Reporter will raise these and other issues at a one day conference.

We’ll put “corporate crime” front and center.

The title of the conference —  Neither Admit Nor Deny: Corporate Crime in the Age of Deferred Prosecutions, Consent Decrees, Whistleblowers and Monitors.

Russell Mokhiber edits the Corporate Crime Reporter.