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>because it isn't a human. This is especially interesting in the context of corporate personhood[1]. You can't send a corporation to jail, but you can disband

>because it isn't a human. This is especially interesting in the context of corporate personhood[1]. You can't send a corporation to jail, but you can disband it entirely, or prevent it from operating. A lot of the practical solutions try to leave badly behaving company operating, though, since if we shut them down there is a lot of collateral damage in the form of lost productivity in the economy and lost jobs. IANAL, but my opinion is that there needs to be a better non-nuclear option for an actual guilty conviction for corporations. As I understand it, if a company actually goes to trial and is convicted, they are not allowed to operate anymore, hence the plea deals and fines. Please correct me if I am wrong, though. [1]https://en.wikipedia.org/wiki/Corporate_personhood https://en.wikipedia.org/wiki/Corporate_personhood

rhizome 8y ago
As far as that goes, I'd be willing to start with implementing standards for execution and working back from there. I haven't looked it up, but I imagine this is how law enforcement evolved in humans.
nerdponx 8y ago
Frankly I don't see why being a member of a corporation should protect an individual from criminal charges. If you do or authorize something illegal on behalf of your company, you should be personally responsible. I know it's a long-standing doctrine in law and there is probably a good reason for it, but it just seems too easy to abuse.
- godzillabrennus 8y ago
  What if you don’t know that your actions are illegal? Who could reasonably do a job as an employee if they didn’t have that liability shield? The justice system is broken enough in the USA (unless you are rich) that I can’t imagine introducing more issues.
  - nerdponx 8y ago
    What if you don’t know that your actions are illegal? Who could reasonably do a job as an employee if they didn’t have that liability shield? This isn't an excuse for private citizens, so why should it be an excuse as an employee? That said, we should propagate responsibility as high as possible. If you are a rank-and-file employee and your manager is asking you to do something illegal, unless you have enough professional autonomy to decline the request without being fired then your manager is responsible, not you.
    - deleted 8y ago
      [deleted]
    - godzillabrennus 8y ago
      Private citizens are employees. Employees have agreed to exchange their labor to another party that intends to profit from it. Why should the labor face the liability when ultimately it is the company that interfaces with the public and profits from their efforts?
- abakker 8y ago
  Well...it doesn't. Members of corporations absolutely can be and are convicted of crimes. The issue is really whether corporation itself, as a legal "person" can be convicted, and if so, what does that actually mean, legally?
  - nerdponx 8y ago
    The issue is really whether corporation itself, as a legal "person" can be convicted, and if so, what does that actually mean, legally? It wouldn't be up for debate if responsible entities at corporations were actually held responsible for their actions. Corporate personhood is a smokescreen in this case.
elliekelly 8y ago
> As I understand it, if a company actually goes to trial and is convicted, they are not allowed to operate anymore, hence the plea deals and fines. You know, I am a lawyer (a corporate one who freelances as a white collar crime journalist at that!) and I don't even know how this would work. I can't even think of a single criminal case against a corporation that I've reported on that went to trial. It just doesn't really come up. I suspect because it's much easier to charge the directors of the corporation with racketeering or fraud. That being said, I can't imagine a criminal conviction of a corporation would dissolve the entity. We don't execute people for committing fraud so I'd be surprised if a judge would execute an entity. I'm also not sure what would stop a corporation from quickly winding up if it seemed criminal charges were on the horizon. After all, you can't charge a "person" with a crime if that "person" isn't there to defend themselves.
- fencepost 8y ago
  you can't charge a "person" with a crime if that "person" isn't there to defend themselves Individuals charged with crimes are defended by attorneys without visibly participating in their criminal trials all the time. I can't imagine a criminal conviction of a corporation would dissolve the entity. No need to dissolve it, simply place it under the same kind of restrictions that someone in prison is placed under - no direct financial activity, severely curtailed communications, etc.
  - elliekelly 8y ago
    > Individuals charged with crimes are defended by attorneys without visibly participating in their criminal trials all the time. Lack of visible participation is far from lack of participation. In the US due process requires the defendant's presence to commence a criminal trial. Once charges have been brought the defendant has a right (that can in some circumstances be waived) to attend and participate in every stage of the trail. Barring a few narrow circumstances[1] once proceedings have commenced a criminal trial in absentia is unconstitutional. [1]https://en.wikipedia.org/wiki/Trial_in_absentia#United_States https://en.wikipedia.org/wiki/Trial_in_absentia#United_State...
gnode 8y ago
> As I understand it, if a company actually goes to trial and is convicted, they are not allowed to operate anymore, hence the plea deals and fines. This isn't true (a counterexample: https://www.justice.gov/usao-ndca/pr/pge-found-guilty-obstruction-agency-proceeding-and-multiple-violations-natural-gas https://www.justice.gov/usao-ndca/pr/pge-found-guilty-obstru... ). The reason for plea deals is that neither prosecutors nor defendants typically want to go to court and have a jury trial with an essentially random high-stakes outcome. Both sides usually want to reach an acceptable compromise. Disbandment also means very little from a punitive perspective, unless you consider disbandment to include seizure of the company's assets. Disbandment is unfavourable because it destroys the value embodied by the company's association: it's customer relationships / brand value, its employee relationships, etc. The cases where disbandment or breakup makes sense are where that association is bad for the rest of society, such as monopolies (e.g. AT&T's antitrust settlement https://en.wikipedia.org/wiki/United_States_v._AT%26T https://en.wikipedia.org/wiki/United_States_v._AT%26T)
- munk-a 8y ago
  I am quite a bit more cynical and see these DPAs as a way for the corporation to be absolved of the nebulous liability that comes from "We did bad stuff, we're still waiting to see if anyone notices" with a slap on the wrists. A DPA seems like literally the closest you can get to pardoning without actually slapping the corporation on the back and publicly saying "Good job buddy, do some more of that" A measure of how unjust our culture is is whether crimes that violate these DPAs go unpunished or not... compared to first time drug offenders that get decades behind bars for possession.
JumpCrisscross 8y ago
> You can't send a corporation to jail, but you can disband it entirely, or prevent it from operating Just "disbanding" a corporation would be pointless. The shareholders (most likely, someone in senior management) could just purchase back (or replicate) the assets and keep going. The proper ways to "kill" companies include revoking their licenses (see Arthur Anderson), fining them into bankruptcy and possibly liquidation and sanctioning them (for foreign SOEs). None seems to apply in this case, where a prohibition on federal contracting and securing an admission of guilt, which lets other customers who were harmed seek redress through the courts, seem to cover all bases.
- munk-a 8y ago
  All of the things you mentioned above are less penalizing then disbanding a corporation and seizing their outstanding assets, revoking licenses in particular - the shareholders and employees of the company could just re-incorporate under a different name and carry on with business as usual - I'd call this "Pulling a Blackwater" but this happens extremely frequently across a lot of sectors.
vkou 8y ago
> A lot of the practical solutions try to leave badly behaving company operating, though, since if we shut them down there is a lot of collateral damage in the form of lost productivity in the economy and lost jobs. There's a lot of collateral damage with sending the family's breadearner, or a mother, or a father to jail, but we do it anyways.
howard941 8y ago
In the context of insolvency, a less culpable state, needless asset and job wastage was addressed for railroads by barring liquidation while displacing management with a board of trustees and stripping owners of their equity and voting power. I'm not sure why equity holders of malfeasant corporations having criminal culpability should fare better than equity holders of corporations that suffer misfortune. The distinction creates a moral hazard.
jsmith45 8y ago
Well the traditional options for dealing with a criminal corporation are disbanding the corporation, nationalizing it, or fining it. Fines don't work as well as would be desired, as sometimes it can still be profitable, except for crazy large fines which are basically equivalent to forcibly disbanding the company. In any case, all three of these tend to hurt the wrong people. They tend to either hurt the shareholders who did nothing wrong (and despite economic theory, have only limited ability to know what really happens inside the company or influence it), or hurts the regular old employees, many of whom will get laid off if massive fines occur, or if the business is forced to closed, and sells off its business units to competitors. The people with the ability to prevent corporate crimes are most often upper management or the executives. Given how these people are generally compensated, and the demands of the shareholders for maximum profits, most of the incentives don't tilt in favor of them making waves to prevent any corporate crimes they notice are in progress. In my opinion the correct solution is to recognize that being an executive or upper management in a corporation is a position of public trust, and thus a privilege not a right. Thus when a company commits a significant crime, the upper manager/executives responsible for it should be forced out by the government. Specifically the courts should have the power to force out a specific executive, upper manager, or board member (as applicable) if: 1. the person was in a position where they knew about the crime (and thus implicit) or ought to have known about the crime (and thus are too incompetent to hold a position of public trust or are practicing willful ignorance) and 2. either had the authority to prevent the crime, or failed to bring the matter to their boss (or the executive with the authority to take actions to prevent the crime, etc). Furthermore, when this happens the court should have the authority to alter the executives employment contract to nullify any "golden parachute" compensation packages or structures that would make getting forcibly kicked out profitable for the individual in question. Basically this means that it is in executives and upper management's personal interest to prevent the company from committing corporate crime, since getting forced out would otherwise be possible. Obviously this should only apply to significant crimes, or repetitive small crimes that the company does not address. It would be absurd to try to apply this to a minor OSHA violation. But on the other hand if the company is constantly being hit with these, and is not making commercially reasonable attempts to fix the underlying systemic problems, then this should be applicable. And obviously this should become a regular part of corporate criminal settlements, as long as that the named individual be provided an opportunity to demonstrate that they were doing everything they were authorized to attempt to prevent the crime, or to demonstrate the existence of a conspiracy to prevent them from knowing about the crime in question which they would otherwise be expected to have known about, etc. Note: In practice for condition 1, the government would normally be expected to show that the person ought to have known, given their position and job responsibilities, but the actual knowledge condition is there in case the government finds correspondence where the individual describes the crime, and dismisses it, such as where they decide the fines are just "the cost of doing business".

rhizome 8y ago

As far as that goes, I'd be willing to start with implementing standards for execution and working back from there. I haven't looked it up, but I imagine this is how law enforcement evolved in humans.

nerdponx 8y ago

Frankly I don't see why being a member of a corporation should protect an individual from criminal charges. If you do or authorize something illegal on behalf of your company, you should be personally responsible. I know it's a long-standing doctrine in law and there is probably a good reason for it, but it just seems too easy to abuse.

godzillabrennus 8y ago
What if you don’t know that your actions are illegal? Who could reasonably do a job as an employee if they didn’t have that liability shield? The justice system is broken enough in the USA (unless you are rich) that I can’t imagine introducing more issues.
- nerdponx 8y ago
  What if you don’t know that your actions are illegal? Who could reasonably do a job as an employee if they didn’t have that liability shield? This isn't an excuse for private citizens, so why should it be an excuse as an employee? That said, we should propagate responsibility as high as possible. If you are a rank-and-file employee and your manager is asking you to do something illegal, unless you have enough professional autonomy to decline the request without being fired then your manager is responsible, not you.
  - deleted 8y ago
    [deleted]
  - godzillabrennus 8y ago
    Private citizens are employees. Employees have agreed to exchange their labor to another party that intends to profit from it. Why should the labor face the liability when ultimately it is the company that interfaces with the public and profits from their efforts?
abakker 8y ago
Well...it doesn't. Members of corporations absolutely can be and are convicted of crimes. The issue is really whether corporation itself, as a legal "person" can be convicted, and if so, what does that actually mean, legally?
- nerdponx 8y ago
  The issue is really whether corporation itself, as a legal "person" can be convicted, and if so, what does that actually mean, legally? It wouldn't be up for debate if responsible entities at corporations were actually held responsible for their actions. Corporate personhood is a smokescreen in this case.

elliekelly 8y ago

> As I understand it, if a company actually goes to trial and is convicted, they are not allowed to operate anymore, hence the plea deals and fines. You know, I am a lawyer (a corporate one who freelances as a white collar crime journalist at that!) and I don't even know how this would work. I can't even think of a single criminal case against a corporation that I've reported on that went to trial. It just doesn't really come up. I suspect because it's much easier to charge the directors of the corporation with racketeering or fraud. That being said, I can't imagine a criminal conviction of a corporation would dissolve the entity. We don't execute people for committing fraud so I'd be surprised if a judge would execute an entity. I'm also not sure what would stop a corporation from quickly winding up if it seemed criminal charges were on the horizon. After all, you can't charge a "person" with a crime if that "person" isn't there to defend themselves.

fencepost 8y ago
you can't charge a "person" with a crime if that "person" isn't there to defend themselves Individuals charged with crimes are defended by attorneys without visibly participating in their criminal trials all the time. I can't imagine a criminal conviction of a corporation would dissolve the entity. No need to dissolve it, simply place it under the same kind of restrictions that someone in prison is placed under - no direct financial activity, severely curtailed communications, etc.
- elliekelly 8y ago
  > Individuals charged with crimes are defended by attorneys without visibly participating in their criminal trials all the time. Lack of visible participation is far from lack of participation. In the US due process requires the defendant's presence to commence a criminal trial. Once charges have been brought the defendant has a right (that can in some circumstances be waived) to attend and participate in every stage of the trail. Barring a few narrow circumstances[1] once proceedings have commenced a criminal trial in absentia is unconstitutional. [1]https://en.wikipedia.org/wiki/Trial_in_absentia#United_States https://en.wikipedia.org/wiki/Trial_in_absentia#United_State...

gnode 8y ago

> As I understand it, if a company actually goes to trial and is convicted, they are not allowed to operate anymore, hence the plea deals and fines. This isn't true (a counterexample: https://www.justice.gov/usao-ndca/pr/pge-found-guilty-obstruction-agency-proceeding-and-multiple-violations-natural-gas https://www.justice.gov/usao-ndca/pr/pge-found-guilty-obstru... ). The reason for plea deals is that neither prosecutors nor defendants typically want to go to court and have a jury trial with an essentially random high-stakes outcome. Both sides usually want to reach an acceptable compromise. Disbandment also means very little from a punitive perspective, unless you consider disbandment to include seizure of the company's assets. Disbandment is unfavourable because it destroys the value embodied by the company's association: it's customer relationships / brand value, its employee relationships, etc. The cases where disbandment or breakup makes sense are where that association is bad for the rest of society, such as monopolies (e.g. AT&T's antitrust settlement https://en.wikipedia.org/wiki/United_States_v._AT%26T https://en.wikipedia.org/wiki/United_States_v._AT%26T)

munk-a 8y ago
I am quite a bit more cynical and see these DPAs as a way for the corporation to be absolved of the nebulous liability that comes from "We did bad stuff, we're still waiting to see if anyone notices" with a slap on the wrists. A DPA seems like literally the closest you can get to pardoning without actually slapping the corporation on the back and publicly saying "Good job buddy, do some more of that" A measure of how unjust our culture is is whether crimes that violate these DPAs go unpunished or not... compared to first time drug offenders that get decades behind bars for possession.

JumpCrisscross 8y ago

> You can't send a corporation to jail, but you can disband it entirely, or prevent it from operating Just "disbanding" a corporation would be pointless. The shareholders (most likely, someone in senior management) could just purchase back (or replicate) the assets and keep going. The proper ways to "kill" companies include revoking their licenses (see Arthur Anderson), fining them into bankruptcy and possibly liquidation and sanctioning them (for foreign SOEs). None seems to apply in this case, where a prohibition on federal contracting and securing an admission of guilt, which lets other customers who were harmed seek redress through the courts, seem to cover all bases.

munk-a 8y ago
All of the things you mentioned above are less penalizing then disbanding a corporation and seizing their outstanding assets, revoking licenses in particular - the shareholders and employees of the company could just re-incorporate under a different name and carry on with business as usual - I'd call this "Pulling a Blackwater" but this happens extremely frequently across a lot of sectors.

vkou 8y ago

> A lot of the practical solutions try to leave badly behaving company operating, though, since if we shut them down there is a lot of collateral damage in the form of lost productivity in the economy and lost jobs. There's a lot of collateral damage with sending the family's breadearner, or a mother, or a father to jail, but we do it anyways.

howard941 8y ago

In the context of insolvency, a less culpable state, needless asset and job wastage was addressed for railroads by barring liquidation while displacing management with a board of trustees and stripping owners of their equity and voting power. I'm not sure why equity holders of malfeasant corporations having criminal culpability should fare better than equity holders of corporations that suffer misfortune. The distinction creates a moral hazard.

jsmith45 8y ago

Well the traditional options for dealing with a criminal corporation are disbanding the corporation, nationalizing it, or fining it. Fines don't work as well as would be desired, as sometimes it can still be profitable, except for crazy large fines which are basically equivalent to forcibly disbanding the company. In any case, all three of these tend to hurt the wrong people. They tend to either hurt the shareholders who did nothing wrong (and despite economic theory, have only limited ability to know what really happens inside the company or influence it), or hurts the regular old employees, many of whom will get laid off if massive fines occur, or if the business is forced to closed, and sells off its business units to competitors. The people with the ability to prevent corporate crimes are most often upper management or the executives. Given how these people are generally compensated, and the demands of the shareholders for maximum profits, most of the incentives don't tilt in favor of them making waves to prevent any corporate crimes they notice are in progress. In my opinion the correct solution is to recognize that being an executive or upper management in a corporation is a position of public trust, and thus a privilege not a right. Thus when a company commits a significant crime, the upper manager/executives responsible for it should be forced out by the government. Specifically the courts should have the power to force out a specific executive, upper manager, or board member (as applicable) if: 1. the person was in a position where they knew about the crime (and thus implicit) or ought to have known about the crime (and thus are too incompetent to hold a position of public trust or are practicing willful ignorance) and 2. either had the authority to prevent the crime, or failed to bring the matter to their boss (or the executive with the authority to take actions to prevent the crime, etc). Furthermore, when this happens the court should have the authority to alter the executives employment contract to nullify any "golden parachute" compensation packages or structures that would make getting forcibly kicked out profitable for the individual in question. Basically this means that it is in executives and upper management's personal interest to prevent the company from committing corporate crime, since getting forced out would otherwise be possible. Obviously this should only apply to significant crimes, or repetitive small crimes that the company does not address. It would be absurd to try to apply this to a minor OSHA violation. But on the other hand if the company is constantly being hit with these, and is not making commercially reasonable attempts to fix the underlying systemic problems, then this should be applicable. And obviously this should become a regular part of corporate criminal settlements, as long as that the named individual be provided an opportunity to demonstrate that they were doing everything they were authorized to attempt to prevent the crime, or to demonstrate the existence of a conspiracy to prevent them from knowing about the crime in question which they would otherwise be expected to have known about, etc. Note: In practice for condition 1, the government would normally be expected to show that the person ought to have known, given their position and job responsibilities, but the actual knowledge condition is there in case the government finds correspondence where the individual describes the crime, and dismisses it, such as where they decide the fines are just "the cost of doing business".