Sentencing Commission Proposes Weakening Criminal Penalties For Corporations

As the Supreme Court was handing over our political system to corporations (see Citizens United), the U.S. Sentencing Commission began considering a rule change that would weaken criminal penalties for corporations.

In short, the proposed rule would allow the offending corporation to reduce its penalty, if it can show that it has an effective compliance program.  This penalty reduction is available even “when high level personnel are involved in the offense.”  In order to qualify for the reduction, the corporation must show all of the following:

1. that the individuals responsible for compliance have direct reporting authority to the board level; and,
2. “the compliance program was successful in detecting the offense prior to discovery or reasonable likelihood of discovery;” and,
3. “the organization promptly reported the violation to the appropriate authorities.”

Now, you’re probably thinking to yourself: “Come on Angelo! What’s the big deal? This seems like a good idea to me.”

You know what? Perhaps it is. But, compared to what?  I’ll refrain from offering up a final opinion about its efficacy for now.  However, I do want to just offer up two broad considerations…

#1) Cops On The Beat:

For the most part, when you hear cheerleading about being “tough on crime,” just remember that corporate crime is generally not including in all those ra-ras.  Consider this: When there is an uptick in crime, people demand more cops on the beat.  Doesn’t matter if it’s the right solution, people demand it – ra ra.  But, when it comes to corporate crime, our society doesn’t demand more.  To the contrary, we promptly capitulate to corporate transgressors.

I understand what the proposed change is trying to do.  It seeks to encourage a corporation to enforce the law against itself.  The reality though is that our regulatory enforcement structures have been systematically weakened during the past couple decades.  Although this policy’s intention may be good, it is a sad reflection of a regulatory system that is aware of its inability to effectively enforce the rules (whatever inadequate ones remain, I might add).

When crime involves flesh and blood people, we have a tendency to increase the stick.  Yet, when crimes deal with corporate persons, we shrink the stick and offer them carrots.

#2) Corporations: A person, but with magic

As Citizens United emphasized, corporations are people too! Except, these “people” (or corporateople) are apparently capable of doing some pretty amazing things.  If I were to shoot someone. Then, march myself to the cops and say “hey, my hand just shot someone…arrest him!”  The cops would arrest all of me…and all of me would be incarcerated, not just my hand.  However, what the U.S. Sentencing Commission’s rule change says to corporateople is that they can in fact send just their hand away and avoid criminal penalties.  Oh, and unlike us regular people, corporateople won’t miss their hand since they can easily replace any of their appendages.

Yea, yea. I’m aware there are some counters to my analogy.  But, my underlying point remains: we certainly do allow these corporateople to do some pretty magical things that us regular people can’t do.

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Given how unbalanced the scales are, this rule might be the best available option.  My point isn’t to necessarily rail against this particular rule change.  Although, I think a case can be made for stronger alternatives.  Rather, my point is to underscore our weakened regulatory system and emphasize just how much work people, as in real people, need to do in order to wrestle our democracy back from these corporateople.

If you feel strongly about this particular regulation, you can submit a comment to the U.S. Sentencing Commission, which they are required to consider when making a decision.  If you’d like information on how to do that, just leave a comment or shoot me an email.