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 will be reporting from the GOP Convention in Cleveland and the Democratic Party convention in Philly at DumpsterFireElection2016.

More articles by:
Weekend Edition
July 22, 2016
Friday - Sunday
Jeffrey St. Clair
Good as Goldman: Hillary and Wall Street
Joseph E. Lowndes
From Silent Majority to White-Hot Rage: Observations from Cleveland
Paul Street
Political Correctness: Handle with Care
Conn Hallinan
The Big Boom: Nukes And NATO
Ron Jacobs
Exacerbate the Split in the Ruling Class
Richard Moser
Actions Express Priorities: 40 Years of Failed Lesser Evil Voting
Eric Draitser
Hillary and Tim Kaine: a Match Made on Wall Street
Jill Stein
After US Airstrikes Kill 73 in Syria, It’s Time to End Military Assaults that Breed Terrorism
Jack Rasmus
Trump, Trade and Working Class Discontent
John Feffer
Could a Military Coup Happen Here?
Jeffrey St. Clair
Late Night, Wine-Soaked Thoughts on Trump’s Jeremiad
Andrew Levine
Vice Presidents: What Are They Good For?
Michael Lukas
Law, Order, and the Disciplining of Black Bodies at the Republican National Convention
Margaret Kimberley
Gavin Long’s Last Words
Mark Weisbrot
Confidence and the Degradation of Brazil
Brian Cloughley
Boris Johnson: Britain’s Lying Buffoon
Lawrence Reichard
A Global Crossroad
Kevin Schwartz
Beyond 28 Pages: Saudi Arabia and the West
Charles Pierson
The Courage of Kalyn Chapman James
Michael Brenner
Terrorism Redux
Bruce Lerro
Being Inconvenienced While Minding My Own Business: Liberals and the Social Contract Theory of Violence
Mark Dunbar
The Politics of Jeremy Corbyn
David Swanson
Top 10 Reasons Why It’s Just Fine for U.S. to Blow Up Children
Binoy Kampmark
Laura Ingraham and Trumpism
Uri Avnery
The Great Rift
Nicholas Buccola
What’s the Matter with What Ted Said?
Aidan O'Brien
Thank Allah for Western Democracy, Despondency and Defeat
Joseph Natoli
The Politics of Crazy and Stupid
Sher Ali Khan
Empirocracy
Nauman Sadiq
A House Divided: Turkey’s Failed Coup Plot
Franklin Lamb
A Roadmap for Lebanon to Grant Civil Rights for Palestinian Refugees in Lebanon
Colin Todhunter
Power and the Bomb: Conducting International Relations with the Threat of Mass Murder
Michael Barker
UK Labour’s Rightwing Select Corporate Lobbyist to Oppose Jeremy Corbyn
Graham Peebles
Brexit, Trump and Lots of Anger
Anhvinh Doanvo
Civilian Deaths, Iraq, Syria, ISIS and Drones
Christopher Brauchli
Kansas and the Phantom Voters
Peter Lee
Gavin Long’s Manifesto and the Politics of “Terrorism”
Missy Comley Beattie
An Alarmingly Ignorant Fuck
Robert Koehler
Volatile America
Adam Vogal
Why Black Lives Matter To Me
Raouf Halaby
It Is Not Plagiarism, Y’all
Rivera Sun
Nonviolent History: South Africa’s Port Elizabeth Boycott
Rev. Jeff Hood
Deliver Us From Babel
Frances Madeson
Juvenile Life Without Parole, Captured in ‘Natural Life’
Charles R. Larson
Review: Han Kang’s “The Vegetarian”
FacebookTwitterGoogle+RedditEmail