American Corporate Criminals in the Crosshairs (finally)

When a corporation is caught criming, chances are it'll get let off the hook.

By Cory Doctorow / Pluralistic

Though corporations in America routinely break the law, often with fatal consequences, it's fair to say America has no corporate criminals, because to have criminals, you need a criminal *system* that identifies criminal conduct and holds it to account. America does *not* have that.

When American corporations break the law, the individuals in the corporation are generally insulated from criminal liability because it's considered unfair to hold anyone - even the millionaire top execs paid to be the person with whom the buck stops - criminally liable for institutional crimes.

But likewise, the US criminal justice system refuses to hold corporations themselves to account for their crimes. Corporate personhood is a useful fiction for all sorts of purposes, but it's also a fiction that corporations and regulators are happy to set aside when that serves corporate interests.

When a corporation is caught criming, chances are it'll get let off the hook. Often, that takes the form of a Deferred Prosecution Agreement (DPA), in which the company is put on a kind of parole: "Clean up your act and we'll forget about this."

The rationale for this is that a company's workers, suppliers and customers (to say nothing of its shareholders) don't deserve to be punished for the company's crimes. Nevermind that often those crimes were committed *against* workers, suppliers and customers. Nevermind the fact that if the company isn't liable, and the execs who did the crime aren't liable, and if the managers who oversee the company aren't liable, then *no one* is liable.

But that's not why America has no corporate criminals. Because a DPA isn't nothing: often it requires a company to make significant modifications to its practices, products and oversight, which would deliver real benefits to the people the company wronged.

The problem is that companies routinely violate their DPAs and other agreements, and not only do they get away with this, it doesn't even weigh against them when they commit fresh crimes! A company that has violated many DPAs for years can break the law, and get *another* DPA, rather than prosecution.

*That's* why America has no corporate criminals. You're only a criminal if you commit a crime, and it's only a crime if you're held to account for it. If you're let off the hook again and again, you're not breaking the law, you're ignoring a suggestion.

These aren't new problems. In 2015, Obama's DoJ published the Yates Memo, promising real action. It never delivered.

Trump, naturally, doubled down on ignoring corporate crimes. Fed white-collar prosecutions reached a 25-year low last year.

One of the big questions about the Biden admin is whether it will repeat the errors of the Obama White House, or learn from them. Last month, Biden Deputy AG Lisa Monaco announced her own version of the Yates Memo, a promise to actually tackle corporate crime:

Monaco promised to require companies to name the involved individuals as a requirement for getting credit for cooperating. She promised that all bad past conduct would be taken into account when setting penalties for new crimes.

Finally, she's promised to tackle DPAs (and their cousins, Non-Prosecution Agreements), vowing to "hold accountable" companies that breach their conditions, with "serious consequences."

If she does it, that represents a serious break from the established practice. Public Citizen's survey of 500 leniency agreements found that only 7 companies were formally declared to have breached them, and only 3 of those faced resumed prosecution.

To be clear, that's not because the companies weren't criming! Public Citizen's new report, "The Usual Corporate Suspects" identifies a rogue's gallery of the 20 most flagrant repeat offenders that Monaco should be looking at.

As David Dayen writes in The American Prospect, the worst offenders include Merrill Lynch, HSBC, Wells Fargo, Jpmorgan Chase, Goldman Sachs, and Credit Suisse; Boeing, Airbus, and United; Monsanto, Microsoft, Chipotle, Novartis, Ticketmaster, and Firstenergy. These scandal-haunted companies have breached the news cycle again and again, and each time, we're told the DoJ held them to account. As the new report makes clear, nothing of the sort took place.

United, for example, has been the target of *533* government actions. Boeing racked up 84, Wells Fargo's got 92; Merrill Lynch has 97, Walmart has 330. Microsoft's got weak crime game with a mere three enforcement actions.

If Monaco is serious about this, she's got a chance to prove it. Two giant companies just breached their leniency deals: Ericsson and Natwest. As is often the case, we don't even know what was in one of those deals: Natwest's agreement is confidential. A muckraking professor named Jon Ashley is suing to make all of these leniency deals public.

Ashley is the co-maintainer of the Corporate Prosecution Registry, which lists all known leniency deals.

Back in 1939, Woody Guthrie wrote "Pretty Boy Floyd," and its prescient lyric:

> Yes, as through this world I've wandered

> I've seen lots of funny men;

> Some will rob you with a six-gun,

> And some with a fountain pen.

The criminals who run the largest American corporations have killed, maimed, stolen and despoiled. The now-you-see-it/now-you-don't fiction of corporate personhood has meant that no one can ever be held accountable for these crimes.

Monaco has the power to change that. This is the kind of Crime Bill that Biden could truly boast about.