Corporate Criminal Law Abolitionists Come Under Fire At Georgetown Law Symposium

A group of academics who would abolish corporate criminal law in favor of administrative and private law remedies came under fire at a symposium at Georgetown Law Center last month.

Susana Aries de Sousa

The symposium, titled Imagining a World Without Corporate Criminal Law – opened with a panel of abolitionist-leaning academics featuring Georgetown Law Professor John Hasnas, Notre Dame Law Professor Stephen Smith and Brooklyn Law Professor Miriam Baer. 

They were joined by Michigan Law Professor Vikramaditya Khanna.

But a majority of academics and practicing lawyers at the symposium came out strongly against abolition of corporate criminal law. 

The anti-abolitionists were led by Australian National University’s John Braithwaite, Duke Law Professor Samuel Buell, Columbia Law Professor John Coffee, Iowa Law Professor Mihailis Diamantis, Michigan Ross Business School Professor Will Thomas, Wharton School Professor William Laufer, and Georgetown Law Professor Julie O’Sullivan.

A panel of corporate criminal lawyers also came out against abolition. 

They included – Crowell & Moring partner Preston Pugh, Baker & Botts partner Steve Solow, NYU Law School’s Andrew Weissmann, and Ron Sarachan of the U.S. Attorney’s office in Philadelphia.

Anti-abolitionists Laufer and Susana Aries de Sousa presented a paper titled The State’s Responsibility for Corporate Criminal Justice. 

“Criminal wrongdoing, whether human or corporate, is harm committed against the moral consensus of the community,” Aries de Sousa told Corporate Crime Reporter in an interview last month. 

“Long ago we transferred to the state the duty of protecting these basic interests, if necessary, through the criminal law system. Connecting the exercise of criminal law with the state as a superior entity reveals a form of justice that rejects acts and decisions reflecting arbitrariness or favoritism in the administration of criminal law.” 

“However, the American history of corporate criminal law shows a progressive emptying of the state of these core and essential functions – in practice a privatization or de-statehood, favored by a compliance game – in the words of Professor Laufer.” 

“This privatization challenges the idea of equality in the administration of criminal justice –  it forgets the victims of corporate crimes and increases inequalities between the marginalized poor deserving of the criminal law whereas the most powerful persons – corporations – are exempt.”

At the conference, Professor Laufer mentioned that he wrote an introduction to the first ever book on corporate victimology. He said it is in Portuguese. 

What is the title of that book, who is the author, and what can you tell us about it?

“I remember Professor Laufer raising and discussing the missing victim problem in corporate crime in a conversation we held, in 2018, at a conference in Freiburg.” 

“The paper – Where Is the Moral Indignation Over Corporate Crime? –  is still intriguing and challenging for many scholars. It comes as no surprise that Professor Eduardo Saad Diniz, a great friend and a most brilliant colleague from São Paulo University – Ribeirão Preto –  has asked Professor Laufer to write the introduction of his book.” 

“The book title is Corporate Victimology and is published both in Portuguese and Spanish. It develops the main architecture, general framework and principal concepts of this new scientific and theoretic field in criminal law. 

“It is a remarkable work and an extraordinary effort that deserves great attention from those committed to corporate accountability.”

At the conference, the abolitionists seemed to be using the failure of the corporate criminal law as a reason to throw the baby out with the bathwater. Instead of recognizing the faults and then moving to correct the problems, they seemed to be saying – this is not working, so let’s get rid of it.

Interestingly, the two foreign participants at the conference – you from Portugal and Professor John Braithwaite from Australia – were in the anti- abolitionist camp. 

In your paper, you quote Professor Braithwaite as saying – ”Without a strong state capable of credible deterrence and incapacitation, you cannot channel regulatory activity down to the base of the pyramid, where trust is nurtured.”

Is there something about the political economy in the United States that leads scholars into the abolitionist camp?

“This is a complex and most difficult question,” Aries de Sousa said. “I don’t think I have the necessary knowledge about the U.S. political economy to answer your question. I can say however that the fact you raise the question is, in itself, meaningful. At one point in our paper we mentioned, as an example of a common refrain for abolition, this ambivalence of corporate criminal law that seems to reflect a hesitancy to inhibit or constrain the most powerful institutions sustaining economic development.” 

“To an external observer it becomes difficult to clearly distinguish how much the public regulation and political economy differ from the private agenda of big corporations. But, as I said, I lack the necessary knowledge to correctly address this question.”

In your paper, you write this: “The very thought of abolishing corporate criminal law because of inequities raises the question: Would we ever consider the same with the state’s failures in bringing violent and property offenders to justice? Abolish the state’s role with the most powerful ‘persons’ and keep the disaffiliated poor to clog our courts, jails, and prisons? To abolish corporate criminal liability sends a very disturbing message about who in society is cast as ‘bad’ and deserving of the kind of moral disapprobation that the criminal law envisions. Is it so simple that the marginalized poor are bad persons and the most powerful of corporations are generally good?”

I’m not sure anyone at the conference would argue that marginalized poor are bad and the most powerful corporations are good. Instead, they seemed to be arguing that the better way to counter corporate crime is through civil fines and regulation. How do you counter that argument?

“Bad and good are moral concepts, connected with the most essential values collectively accepted,” Aries de Sousa said. “The part of the legal system most connected with society’s ethical expectations is criminal law. Losing criminal law in corporate wrongdoings corresponds to neutralizing the unethical resonance of these harmful behaviors, diminishing its meaning and the impression they cause. In simple words, to be criminally convicted or civilly convicted does send different impressions to the community, both about the agent and the importance of the interests denied and offended – in particular, those which are not relevant enough to deserve criminal protection.”

You have written a book on criminal product liability. What is criminal product liability? What are some real life examples of companies charged with criminal product liability?

“Criminal product liability – another expression for criminal responsibility for product consumption – addresses accountability for harms connected with fabrication, selling or trading of dangerous or defective products or goods, able to affect a large number of people. Real examples are the intoxication caused by a spoiled edible good, the death of consumers of alcoholic beverages altered with methanol, or a defective anticonception drug lacking any active principle.” 

“In most of the cases I have studied, there was no corporate liability in discussion, among other reasons, because corporations were not criminally liable in some of the countries where the cases occurred – Germany and Brazil, for example. The examples are endless, growing in complexity in the present consumption society. However, my research focused mainly on the problems that these cases raise with respect to the causal nexus required by some incriminations – homicide and offenses to physical integrity. I came to the conclusion that criminal law faces serious difficulties in addressing situations that do not correspond to the classical idea – one criminal agent – one victim.”

[For the complete q/a format Interview with Susana Aries de Sousa, see 35 Corporate Crime Reporter 42(12), Monday November 1, 2021, print edition only.]

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