FacebookTwitterGoogle+RedditEmail

The Case for a Corporate Homicide Law

by RUSSELL MOKHIBER

When Ira Reiner was the District Attorney for Los Angeles County back twenty‑five years ago or so, he had a policy of opening a criminal investigation every time a worker died on the job.

Not that he would prosecute every case.

But he would investigate every case as a corporate crime.

And sometimes he would bring criminal charges against the corporation for the death of a worker.

Today, you rarely see a prosecutor bring criminal charges against a corporation for the death of a worker.

Instead, the Occupational Safety and Health Administration (OSHA) imposes minimal civil fines on companies for worker deaths.

Just in the past two months, OSHA fined one company $28,000 and another $77,000 for worker deaths.

In 2007, after a few high profile worker death cases, the UK passed a corporate homicide law.

The law allows prosecutors to bring homicide charges against the corporation for the death of workers or consumers. Similar laws are being debated in New Zealand and Australia.

In just the last two years, 108 homicide prosecutions have been opened in the UK against corporations under the law.

Do OSHA and its chief David Michaels support passage of such a law in the United States?

“Although they are not technically manslaughter cases, the OSH Act provides for criminal penalties for employers whose willful violation of an OSHA standard causes death to any employee,” an OSHA spokesperson said in response to the question.

“Because, under federal law, only the Department of Justice may prosecute criminal cases, we refer appropriate cases to the Department of Justice for prosecution under this provision. We also assist in the prosecution of cases involving worker deaths under other statutes, such as the Clean Air Act and the Clean Water Act, which provide more severe sanctions than those available under the OSH Act. In addition, we assist local prosecutors seeking actual manslaughter convictions in worker deaths.”

Any other questions, the OSHA spokesperson asked, via e-mail?

Yes, back to the original question.

Do David Michaels and OSHA support the passage of a federal corporate homicide statute in the US similar to the one passed in the UK?

No answer.

So, OSHA isn’t taking a corporate homicide law seriously.

But James Harlow is.

Harlow is a 2012 graduate of Duke School of Law.

While at Duke, he wrote a law review article titled Corporate Criminal Liability for Homicide: A Statutory Framework.

In it, he lays out a draft statute that begins with these words:

“An organization is guilty of corporate homicide when it knowingly, recklessly or negligently causes the death of a human being.”

In the article supporting the draft statute, Harlow argues that “a corporation may be directly responsible for the deaths of the employees, consumers, and members of the general public with whom it interacts.”

“In situations of systemic internal misconduct or corporate recidivism, civil regulatory penalties and private lawsuits are insufficient to vindicate society’s interest in punishing the entity responsible for these deaths.”

“There are instances when a corporate entity is a truly blameworthy actor, rather than ‑‑ or in addition to ‑‑ individual employees, and when a criminal sanction against the corporation would have the greatest effect. This may be particularly true for large corporations given their complex bureaucratic structures.”

“Current homicide schemes are ill equipped to accommodate corporate defendants. Historically, there have been few significant corporate prosecutions for homicide. Those that have occurred have tended to be against small companies in which ownership and management were united in the same individuals, who were also charged individually.”

“The paucity of successful prosecutions suggests that current law does not provide prosecutors with the power to bring corporate homicide charges or, that if the power exists, its lack of clarity discourages prosecutors from bringing cases.”

Why not just hold individual executives criminally responsible? Why the corporation?

“The individual employees in the vast majority of these cases are acting the way they are acting because of their role within the corporation,” Harlow told said last week.

“The corporation is at the heart of the criminal conduct. There is a need to express to the corporation the moral sanction and blameworthiness that comes with the criminal law.”

But aren’t you only hurting innocent shareholders if you hold the corporation liable?

“These shareholders benefit when the corporation engages in nefarious conduct,” Harlow said. “And they are profiting from that.”

“As far as civil regulatory schemes, there are times when the civil regulatory schemes don’t have teeth – for whatever reason – the regulators being overworked or underfunded, or the regulatory scheme itself doesn’t provide the sanctions necessary to make the corporation change its ways.”

“In those instances for serial regulatory violators, the criminal law can serve as an instrument to help turn around the corporation and prevent future wrongdoing by those most culpable corporations.”

Harlow says that “the expression of a community’s moral condemnation, even when applied to corporations, is unique to criminal law and goes beyond the utilitarian goals of rehabilitation and deterrence. There is significant intrinsic value to this expressive force when it is applied to corporations in the same way that it is applied to individuals.”

Harlow writes that “organizational theorists recognize that an organization’s culture is closely intertwined with its leadership.”

“Management may create a culture that sacrifices safety for profits, or it may create a safety‑first culture. The desire for profits can be a powerful ‑‑ even irresistible ‑‑ force that can cause a corporation to hazard great risks. In such cases, the corporation may be the truly blameworthy actor, rather than any one employee.”

Is Harlow saying that you can indict a corporation for its culture?
“Corporate culture is evidence that can and should be considered against a corporation,” Harlow says. “You are able to divine a corporate culture from its written policies, its de facto policies, and its ethos, as testified to by employees, mid‑level managers, senior managers. It is possible to put your hand on a corporate culture and a corporate ethos. You shouldn’t indict a corporation solely because you think it has a bad culture, or exclusively a profit maximizing culture that sacrifices safety. But it certainly could be evidence brought against a corporation.”

Harlow’s draft law would impose a maximum $10 million fine per death on the corporation. But perhaps more important, he would impose a maximum five years of probation.

And he believes that the federal government should create a corporate crime unit within the probation office.

“There are enough federal corporate crime cases that it would be worthwhile to see whether there should be some centralized unit that represents the U.S. government’s interest in terms of corporate probation,” Harlow says. “It’s worthy of study and debate. It might be preferable to the present system of corporate monitorships, where former high level prosecutors sit in the boardroom.”

[For the complete q/a format Interview with James Harlow, see 27 Corporate Crime Reporter 28(12), July 15, 2013, print edition only.]

Russell Mokhiber edits the Corporate Crime Reporter.

Russell Mokhiber is the editor of the Corporate Crime Reporter..

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
April 28, 2017
Friday - Sunday
Paul Street
Slandering Populism: a Chilling Media Habit
Andrew Levine
Why I Fear and Loathe Trump Even More Now Than On Election Day
Jeffrey St. Clair
Mountain of Tears: the Vanishing Glaciers of the Pacific Northwest
Philippe Marlière
The Neoliberal or the Fascist? What Should French Progressives Do?
Conn Hallinan
America’s New Nuclear Missile Endangers the World
Peter Linebaugh
Omnia Sunt Communia: May Day 2017
Vijay Prashad
Reckless in the White House
Brian Cloughley
Who Benefits From Prolonged Warfare?
Kathy Kelly
The Shame of Killing Innocent People
Ron Jacobs
Hate Speech as Free Speech: How Does That Work, Exactly?
Andre Vltchek
Middle Eastern Surgeon Speaks About “Ecology of War”
Mike Whitney
Putin’s New World Order
Matt Rubenstein
Which Witch Hunt? Liberal Disanalogies
Sami Awad - Yoav Litvin - Rabbi Lynn Gottlieb
Never Give Up: Nonviolent Civilian Resistance, Healing and Active Hope in the Holyland
Pete Dolack
Tribunal Finds Monsanto an Abuser of Human Rights and Environment
Christopher Ketcham
The Coyote Hunt
Ramzy Baroud
Palestinian, Jewish Voices Must Jointly Challenge Israel’s Past
Ralph Nader
Trump’s 100 Days of Rage and Rapacity
Harvey Wasserman
Marine Le Pen Is a Fascist—Not a ‘Right-Wing Populist,’ Which Is a Contradiction in Terms
William Hawes
World War Whatever
John Stanton
War With North Korea: No Joke
Jim Goodman
NAFTA Needs to be Replaced, Not Renegotiated
Murray Dobbin
What is the Antidote to Trumpism?
Louis Proyect
Left Power in an Age of Capitalist Decay
Medea Benjamin
Women Beware: Saudi Arabia Charged with Shaping Global Standards for Women’s Equality
Rev. William Alberts
Selling Spiritual Care
Peter Lee
Invasion of the Pretty People, Kamala Harris Edition
Cal Winslow
A Special Obscenity: “Guernica” Today
Binoy Kampmark
Turkey’s Kurdish Agenda
Guillermo R. Gil
The Senator Visits Río Piedras
Jeff Mackler
Mumia Abu-Jamal Fights for a New Trial and Freedom 
Cesar Chelala
The Responsibility of Rich Countries in Yemen’s Crisis
Leslie Watson Malachi
Women’s Health is on the Chopping Block, Again
Basav Sen
The Coal Industry is a Job Killer
Judith Bello
Rojava, a Popular Imperial Project
Robert Koehler
A Public Plan for Peace
Jesse Jackson
Jeff Sessions is Rolling Back Basic Rights
Nyla Ali Khan
There Has to be a Way Out of the Labyrinth
Rivera Sun
Blind Slogans and Shallow Greatness
Michael J. Sainato
Trump Scales Back Antiquities Act, Which Helped to Create National Parks
Stu Harrison
Under Duterte, Filipino Youth Struggle for Real Change
Martin Billheimer
Balm for Goat’s Milk
Stephen Martin
Spooky Cookies and Algorithmic Steps Dystopian
Michael Doliner
Thank You Note
Charles R. Larson
Review: Gregor Hens’ “Nicotine”
FacebookTwitterGoogle+RedditEmail