Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

I guess I should not be surprised anymore, but it still saddens me to read that our old friend, Halliburton, has pled guilty to destroying evidence concerning their participation in the BP Deepwater Horizon oil rig explosion and the subsequent environmental disaster in 2010.  If they pled guilty why should I be upset?  I am upset that the Department of Justice agreed to a $1.1 Billion fine instead of jail time.  Once again a corporate “citizen” has committed a crime and no one is going to jail.

I understand the costs involved in taking a case of this magnitude to trial, in order to press for prison time for the culpable officers. However, if this had been an individual would the Justice Department have balked at trying to get a conviction and jail time?  I am not the only one concerned with the Justice Department’s soft handling of corporate criminals.

“David Uhlmann, an University of Michigan environmental law professor and former chief of the U.S. Department of Justice’s Environmental Crimes Section, said the settlement raises questions about the absence of criminal charges against the company.

“Halliburton did not admit negligence in today’s settlement but the fact that they agreed to pay over $1 billion raises anew questions about why the Justice Department did not charge the company criminally for its role in causing the Gulf oil spill,” Uhlmann said in an email reply to USA TODAY questions about the settlement.” Reader Supported News

I can’t blame Halliburton for working to get a fine instead of jail time, but how can we stop corporate criminals from breaking the law in the future when the worst case scenario for them is the payment of a fine that could be tax-deductible?  Halliburton was also looking at more serious financial uncertainty if it had not reached a settlement because of its role in the Deepwater Horizon fiasco and would have had to deal with the multiple BP claimants. Wouldn’t that give the Justice Department more bargaining power to insist on some jail time?

“With the agreement, Halliburton removes itself from future liability regarding legal claims filed on behalf of thousands of fishermen, business owners and others who said their lives and livelihoods were ruined by the spill.

“Halliburton wanted out,” said LeCesne. “Since their failed cement mixture is a the epicenter of culpability in this incident, they didn’t want to take any further chances.”‘ RSN

This is not the first time that a corporate “person” has committed crimes and only had to face a fine.  We have seen it in the numerous Banks who have bought their way out of criminal liability.  What will it take for the Justice Department to actually push for a criminal penalty in these corporate bad actor cases?

Shouldn’t a corporation that has allegedly committed crimes run the same risk as any individual when it comes to going to jail for those crimes?   This problem of allowing corporations to buy their way out of criminal prosecutions is not a new issue.  According to one Harvard Law Professor, Brandon Garrett, it started after the prosecution of the Arthur Anderson case in 2002 and after the conviction was overturned on appeal, prosecutors have been hesitant to go for criminal penalties in corporate cases.

“Federal prosecutors cemented their current approach to corporate prosecutions following the Arthur Andersen trial, which took place in 2002, and which I describe in the book—the jury convicted Andersen, resulting in the collapse of the company, but the conviction was then reversed on appeal. Fearful of the backlash should more high-profile cases end in disaster, prosecutors decided to allow more companies to avoid a conviction by entering deferred and non-prosecution agreements. Those deals took off in 2003, and they first caught my attention in 2006, when just a few dozen had been entered. The new approach was firmly in place when the financial crisis hit in 2007, and perhaps as a result, some companies may have felt they could settle prosecutions as a cost of doing business.” Harvard University Press Blog

Whatever reasons the Department of Justice is relying upon to push for civil fines instead of going for criminal convictions, the result stated by Prof. Garrett above would seem to be an easy decision for large corporations.  Pay some money and walk away from the crimes.  With the Department of Justice playing softball on corporate crime, why should the large corporations change their ways? As you may recall, Bank of America has been cited at least 6 separate times and no one has yet gone to jail.  Time for a change in the Justice Department’s approach, don’t you think?

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