FacebookTwitterGoogle+RedditEmail

The Case for a Corporate Homicide Law

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.

More articles by:

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

August 16, 2018
Bruce E. Levine
“Don’t Be Stupid, Be a Smarty”: Why Anti-Authoritarian Doctors Are So Rare
W. T. Whitney
New Facebook Alliance Endangers Access to News about Latin America
Sam Husseini
The Trump-Media Logrolling
Ramzy Baroud
Mission Accomplished: Why Solidarity Boats to Gaza Succeed Despite Failing to Break the Siege
Larry Atkins
Why Parkland Students, Not Trump, Deserve the Nobel Peace Prize
William Hartung
Donald Trump, Gunrunner for Hire
Barbara Nimri Aziz
Morality Tales in US Public Life?
Yves Engler
Will Trudeau Stand Up to Mohammad bin Salman?
Vijay Prashad
Samir Amin: Death of a Marxist
Binoy Kampmark
Boris Johnson and the Exploding Burka
Eric Toussaint
Nicaragua: The Evolution of the Government of President Daniel Ortega Since 2007 
Adolf Alzuphar
Days of Sagebrush, Nights of Jasmine in LA
Robert J. Burrowes
A Last Ditch Strategy to Fight for Human Survival
August 15, 2018
Jason Hirthler
Russiagate and the Men with Glass Eyes
Paul Street
Omarosa’s Book Tour vs. Forty More Murdered Yemeni Children
Charles Pierson
Is Bankruptcy in Your Future?
George Ochenski
The Absolute Futility of ‘Global Dominance’ in the 21st Century
Gary Olson
Are We Governed by Secondary Psychopaths
Fred Guerin
On News, Fake News and Donald Trump
Arshad Khan
A Rip Van Winkle President Sleeps as Proof of Man’s Hand in Climate Change Multiplies and Disasters Strike
P. Sainath
The Unsung Heroism of Hausabai
Georgina Downs
Landmark Glyphosate Cancer Ruling Sets a Precedent for All Those Affected by Crop Poisons
Rev. William Alberts
United We Kneel, Divided We Stand
Chris Gilbert
How to Reactivate Chavismo
Kim C. Domenico
A Coffeehouse Hallucination: The Anti-American Dream Dream
August 14, 2018
Daniel Falcone
On Taking on the Mobilized Capitalist Class in Elections: an Interview With Noam Chomsky
Karl Grossman
Turning Space Into a War Zone
Jonah Raskin
“Fuck Wine Grapes, Fuck Wines”: the Coming Napafication of the World
Manuel García, Jr.
Climate Change Bites Big Business
Alberto Zuppi - Cesar Chelala
Argentina at a Crossroads
Chris Wright
On “Bullshit Jobs”
Rosita A. Sweetman
Dear Jorge: On the Pope’s Visit to Ireland
Binoy Kampmark
Authoritarian Revocations: Australia, Terrorism and Citizenship
Sara Johnson
The Incredible Benefits of Sagebrush and Juniper in the West
Martin Billheimer
White & Red Aunts, Capital Gains and Anarchy
Walter Clemens
Enough Already! Donald J. Trump Resignation Speech
August 13, 2018
Michael Colby
Migrant Injustice: Ben & Jerry’s Farmworker Exploitation
John Davis
California: Waging War on Wildfire
Alex Strauss
Chasing Shadows: Socialism Won’t Go Away Because It is Capitalism’s Antithesis 
Kathy Kelly
U.S. is Complicit in Child Slaughter in Yemen
Fran Shor
The Distemper of White Spite
Chad Hanson
We Know How to Protect Homes From Wildfires. Logging Isn’t the Way to Do It
Faisal Khan
Nawaz Sharif: Has Pakistan’s Houdini Finally Met his End?
Binoy Kampmark
Trump Versus Journalism: the Travails of Fourth Estate
Wim Laven
Honestly Looking at Family Values
FacebookTwitterGoogle+RedditEmail