CORPORATE CRIME REPORTER
Law
Professor Proposes Corporate Death Penalty Act
20 Corporate Crime Reporter 43(3), October 31, 2006
A Midwest law professor wants the death penalty for corporations.
In a law review article published earlier this year in the Arizona Law Review, Professor Mary Kreiner Ramirez says that modern corporations are like the computerized beasts in the Terminator movies – created by human beings, but now more powerful.
And the only way to effectively control the beast is to destroy the most egregious actors.
“The proposal for a corporate death penalty urges the soulless corporation to behave for its own good, even if it cannot comprehend the need to behave for the good of society,” Professor Ramirez writes.
Ramirez is a visiting associate professor of law at Washburn University School of Law in Topeka, Kansas.
She is a former senior trial attorney for the U.S. Department of Justice, first with the Antitrust Division and subsequently with the U.S. Attorney's Office for the District of Kansas.
The article, “The Science Fiction of Corporate Criminal Liability: Containing the Machine Through the Corporate Death Penalty,” (47 Arizona Law Review 933, Winter 2005), proposes a three strikes and your out formula for the death penalty – with the first two strikes not necessarily being criminal convictions, but the third strike being a conviction of a serious crime.
“Just as a foul ball in baseball may be counted as a strike, this approach permits negotiated civil settlements for some misconduct to be counted as strikes,” Ramirez writes. “The third strike must be a pure strike – that is, it must be a serious violation of criminal law. This approach maximizes opportunities for remediation prior to the ultimate penalty of involuntary dissolution and assures that this penalty is finally triggered only upon serious criminal conduct.”
Once the corporate death penalty act is adopted, strike violations by corporations would be reported to the appropriate government authority, “ which would maintain a publicly available log of the strikes.”
“In addition to the mandatory reporting requirement, the entity would be required to include strike information in its financial statements and disclosure filings, and to publicize the strike through advertisements in broadly circulated newspapers likely to be viewed by investors and customers,” she writes. “Wide public disclosure of information relating to strikes would serve to alert innocent investors to the speculative risk created by the possibility of involuntary dissolution and the economic disruptions attendant to such a dissolution.”
Defense attorneys are, as they read this, no doubt already contemplating the beautiful reality of deferred prosecution agreements – no strike, no foul.
No dice.
Professor Ramirez proposes to expand the strike definition beyond felony convictions to include some non-conviction resolutions as eligible for strikes one and two.
Under her plan, civil consent decrees and deferred prosecution agreements would be considered strikes for one and two, but not for three.
And freak out not, corporate crime defense bar.
Corporate death does not necessarily mean vanquishment, as Professor Ramirez sees it.
“Once
a corporation is sentenced to three strikes, the appropriate government official
would dissolve the corporation by revoking its charter,” she writes. “A
receiver or trustee would be appointed to oversee the dissolution of the corporation.
In instances of dissolution, the could generally draw from the jurisdiction's
corporate laws that govern the winding up of the corporation. Even though dissolution
would end the corporate existence, the trustee could liquidate the business
or negotiate the sale of the business, as a whole or in part, on behalf of the
stakeholders – thus, the business entity could arise anew, keeping the
jobs of employees and the assets of the entity in place, similar to Terminator
2, where the robotic human flexibly congeals after apparently deadly encounters
with blasts, fires, and other mishaps.”
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