In Federal Agency Proposes Reduced Criminal Penalties for Corporations at the WSJ Law Blog, Amir Efrati writes:
“What kind of penalties should companies face when their employees commit crimes?
[T]he U.S. Sentencing Commission … last week included a proposal in this 78-page document to reduce exposure by organizations whose employees engage in criminal behavior….
Under the proposal, highlighted in today’s [January 29, 2010] WSJ story, corporations could receive credit during sentencing if they have compliance programs designed to combat white-collar crime….
The proposal, which the commission has released for public comment, would reduce fines and penalties even if high-level company officers were involved in the criminal activity.”
Applying criminal penalties to white-collar crime by employees of corporations has never been very successful and can lead to disastrous results, such as in the case of Arthur Andersen LLP, which ultimately went out of business due to a criminal prosecution for destruction of evidence that cost “thousands of jobs”. As written at the previously cited WSJ story by Gary Fields:
“Changing how corporations are handled in criminal cases is one of the commission’s priorities this session, and the proposal tackles a controversial area of law. After the corporate accounting scandals in the early 2000s, the Department of Justice prosecuted a number of companies, including Enron’s accountant, Andersen LLP. The conviction, though overturned later by the Supreme Court, put the company out of business, resulting in thousands of jobs lost. “
The issue involved here is important for law, touching again upon the inexorable question of the limits of the criminal sanction. As we have written previously at LawPundit:
“Who out there in the American criminal justice system understands the basic wisdom found in Herbert Packer‘s Limits of the Criminal Sanction? What lawmaker, government official, judge, prosecutor, or prison official in the United States has ever read Packer’s book – much less applied the inexorable legal policy conclusions demanded by it? (see Google Books, this PPT and Packer’s Two Models of the Criminal Process)
Not every undesirable human action or activity in society is or should be subject to criminal punishments. There are other – more modern – means available to deal with socially undesirable behavior.“
What about the barbaric system of handcuffs for white-collar crimes? Totally unnecessary.
We wrote previously at LawPundit:
“[E]xecutives being carted away in handcuffs – what is the point of this barbaric government behavior – have the authorities seen too many Westerns on TV? Handcuffs are for dangerous violent persons, not for white-collar circumstantial crimes. The whole image is terrible for the entire justice system. It is terrible for America. Land of the free? Model for the world? Hardly. Forget that myth. “Prison Justice” and the “binding of the hands of prisoners” (just look at ancient Egyptian hieroglyphs ) has been known since antiquity – there are better, more modern and humane solutions.] “
The proposals of the U.S. Sentencing Commission unfortunately retain the implicit assumption that “criminal penalties” and “internal government control” are the most advisable ways to deal with white-collar crime in corporations, whereas there is simply no empirical evidence anywhere that such an assumption is accurate.
We suspect that any good economist will tell the lawmakers and regulators that white-collar crimes are economic by nature and should be penalized in due course by economic sanctions, rather than by primitive barbaric criminal incarceration and the like.