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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Thanks, Aridog. It was not surprising that 2 old timers who love the First Amendment, MikeA and mespo, agree w/ the decision. It was fun reading SWM hating it.
Dang…I could mess up a one car funeral procession…the link I just attached using HTML did not go where it was intended by a long shot. However the literal URL does act as a link….its been a while since I’ve dealt with Word-Press, so I was redundant and clumsy. Sorry.
Pardon me, I meant to cite the entire 2010 post I quoted from, but failed to do so…so here it is as a link and below as a literal citation of the URL.
http://jonathanturley.org/2010/01/21/supreme-court-rules-5-4-against-campaign-limitations-in-the-hillary-the-movie-case/
Are we being uncivil today? Tsk, tsk…
Aridog, Great comment. Hope all goes well today, my friend.
The Gray Panthers kicked butt.
Annie – you don’t have what it takes to be a Grey Panther.
Rafflaw…You don’t specify whose opinions where what on Citizens United in your rejoinder on the subject, apparently are referring to Nick’s remark about Professor Turley’s backing the majority in Citizens United.
What am I missing in the following quotation from Professor Jonathan Turley @ 21 January 10 in the Post: Supreme Court Rules 5-4 Against Campaign Limitations in The Hillary The Movie Case?
I was sympathetic with Citizens United and the free speech groups. In the end, I have to favor more speech than less in such conflicts. While I would have written a concurrence and have difficulty with aspects of the majority opinion, I probably would have voted to support the majority in the result in this case. However, I do consider this to be one of the most difficult free speech cases to hit the court in decades. Many of my friends are on the other side and I understand that this is quite a blow. People of good faith can disagree on such issues. It really broke along a fine line. It depends on whether your gravitational point tended to fall along the free speech line or the good government line. It is a rare case where those lines ran perpendicular rather than parallel with each other.
I am willing to listen to comments that would clarify or change my interpretation of the above quotation.
My own layman opinion on Citizens United is not fully formed, because of the vague arguments made, here and elsewhere, about what it does and doesn’t do and I’ve not had the time to research it as thoroughly as I want. I have read the latest version of S J Res. 19 and in my mind it addresses nothing in Citizens United as written now. Given: multiple deletions were made to it. I posted a link to it earlier.
Raff, Let’s start w/ you. Do you support the Citizen’s United Decision? Did the dearly departed GBers? You all HATE the decision and have stated so here. And, you are the person who doesn’t think there are speech codes and PC edicts on college campuses. So, how could I even have an intelligent discussion w/ someone w/ that deeply flawed thought process? It is a burden even engaging w/ you.
Annie,
LOL! That must stand for Little Old Ladies.
😉
Elaine – mutual support is important.
Raff,
That’s part of the civility part…..
There is something still to be admired by a person who takes a position based upon constitutional interpretations that are not popular with many.
Revisionist History 101.
Annie – you are getting like the little old ladies in the choir who shout “Amen” when the pastor says something. Hence you Revisionist History 101.
Hallelujah!
Nick,
You have an interesting and incorrect memory of the opinions after the Citizen United decision and your opinion of what the “old timers” think about the 1st amendment is totally false.
Free, The old timers here almost had strokes when JT backed the Citizen United decision. They want to control speech via speech codes and PC and don’t want others to express their political views, the most protected speech of all. Good thing they hate the 2nd Amendment and guns, they might become spree killers otherwise.
What’s funny about that is that one of Michael Moore’s express purposes in making Fahrenheit 9/11 was to unseat George Bush. This movie cost millions of dollars, was funded by a veritable corporate keiretsu and itself was the product of a corporation, Dog Eat Dog, Inc. Could he release the movie, or not? (Of course he can!)
The I Amendment is not a guarantee to go and spout off in the corner to only those who are within earshot. On the contrary, its very essence, its HIGHEST FUNCTION is to allow people to speak with the EXPRESS INTENTION of trying to persuade you.
If the Westboro Baptist church spews hatred and vitriol at people its emotionally hard to uphold their First Amendment right, but in reality the Westboro Baptist Church isn’t particularly persuasive and in that sense its easy to allow them to continue what they’re doing. The conservatives though might actually engage in speech that people find, compelling, persuasive and ultimately speech which may even influence the outcome of an election. We can’t have that, can we?
Well, Nick, I’m glad you asked because ultimately liberals espouse what’s called the ‘anti-distortion’ rationale. In other words, somebody who spends a lot of money in the marketplace of ideas and whose ideas thusly prevail in the marketplace of ideas is simply ‘buying’ the result of the marketplace of ideas. It couldn’t POSSIBLY be that the ideas espoused are actually persuasive of course. Of course, it carries with it a less than content neutral bias. In the case of Citizens United, they were spending money on an anti-Hillary movie and God forbid the electorate get the wrong impression of Hillary Clinton, if they do, Citizen United’s speech must be ‘distorting’ the marketplace of ideas.
“anonymous donors” – the reference here to anonymous donors fails to note that the Citizens United decision expressly upholds the disclosure requirements Congress imposed unless you have a genuine fear in a manner similar to NAACP v Alabama
Why are so many liberals conflicted about the 1st and 2nd Amendments?
Nick – I think the conflict comes because if they give in to one they have to give in to the other.
The Hobby Lobby decision notes Hobby Lobby’s closely held status, but the Dictionary Act definition of ‘person’ is not so limited. See 1 U.S.C. 1 – “the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals” and ultimate the question of whether it could apply to the likes of IBM is a different question which hasn’t been answered yet. In theory the statute does not limit a claim under the RFRA, the only question would be the ever-changing nature of a publicly traded stock’s ownership and whether the religious belief is truly valid in a way that is more obvious with a closely held corporation.