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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Bettykath, I guess individual personal rights aren’t enough, they want double the amount of rights the rest of us real human individuals get.
annie – that does not even make sense. Would you like to expand on that. For the purposes of Constitutional protections corporations are persons.
FreeNYCpics, You are responding to something I posted but I can make absolutely no sense of it.
DBQ, You, as an individual, still have rights, e.g. the right of freedom of expression, the right to worship or not as you please, the right to vote, etc.
Your corporation should NOT have these rights because it is not a natural person, it is an artificial “person”, although the Supreme Court has said that it does have the right of freedom of expression and the right to worship.
The problem isn’t with the small businesses that incorporate for personal liability protection. The problem is with the large, mostly multi-national corporations.
bettykath – so, we are going to weigh persons. Large or over-weight persons would be unqualified for protections under the Constitution.
“The New York Times is protected by the first amendment. There is a difference between the corporation which gets its charter from the state and are considered to be artificial persons and natural persons. Natural persons are the ones whose civil rights are protected.”
This doctrine ties itself up into knots. If the NY Times is protected by the I Amendment, and it is, and there are differences between corporations and natural persons, there are, then for purposes of the I Amendment, which impacts government power, its not a difference that makes a difference. And then you say that its natural persons whose civil rights are protected, but the NY Times is protected by the I Amendment. Of course you’re already seeing that individuals speak and that speech is protected and then the only question is whether that speech is attributable to the corporation via ordinary rules of vicarious liability/master/servant, etc….
An easy, sure way to spot a paid or volunteer right-wing shill/troll is the tactics they all use when responding to information they don’t like but can’t refute.
almost all try to shoot the messenger, try to discredit the source, say something childish/silly, feign outrage, question the writer’s patriotism, act as though the message or messenger doesn’t deserve a response, deny there is such a thing as paid propaganda, cite a right-wing argument that may or may not make sense on its own, but is unresponsive to the issue at hand, act in a way that reveals their loathe for people and ideas that are unknown or just different than theirs, cite right-wing talking points from the vast right-wing conspiracy etc.
So, it is a tautology. If you deny you are a right-wing troller you are a right-wing troller. Got it. Your logic is peerless.
Now, how do we know they are left-wing trollers? Same answer?
How condescending need one be. Jon, check your email, you’re being pulled into the trap again.
DBQ, Thanks for getting the women back to substance. You are a woman of substance.
If NY Times is protected by the I Amendment despite spending hundreds of millions to speak why isn’t Citizens United which spent less than $10mn to make the anti-HIllary movie?
Aridog, Please check your email prior to responding to anyone new on this thread. I don’t want you to get pulled into a trap.
So are you saying that I am not a “real person” because I choose to operate my business as a corporation. That because I own the controlling shares of a corporation, I am no longer protected by the first amendment nor have the right to express my political views?
How about Unions? Do they have the right to put out political advertising? If we take your stance on corporations, then they aren’t “real people” either and should not be allowed to campaign or place advertisements. They should “shut up” too. Right?
If you say the Unions do have the right to political speech while corporations do not, then it is pretty obvious that you are only in favor of political speech for those who agree with your positions.
The New York Times is protected by the first amendment. There is a difference between the corporation which gets its charter from the state and are considered to be artificial persons and natural persons. Natural persons are the ones whose civil rights are protected. Corporations should be governed by the states and their charters revoked when they overstep. Unfortunately, some railroad advocates deliberately slipped a bit into the Constitution which gave corporations personhood. Great for the corporations but disastrous for real people.
I also think that campaign spending should be only that provided by public sources.”
Define what you think that means? Public sources? Should Unions be precluded from campaign spending? Union dues come from a small group of people who represent their organization…..sort of like a corporation. Wow! Contributions from small donors go to PACs. Small people in the public pool their money into a PAC to represent their collective thoughts and be able to effectively campaign. Campaigning is expensive and people must pool their 20 dollar contributions in order to get their voices heard. Or do you want the small donors to not be able to assemble and petition the government?
Non public money? What is that? Our small group of doctors or accountants….are they not public? Or did they suddenly become non persons who have no voices?
“I think that a constitutional amendment that clearly states that corporations are not people is the first that is needed.”
I think you need to understand what a corporation is. I am part of a corporation of two people. We have a small business that is incorporated for tax and personal liability purposes. Do I lose the right to express my political opinions on political issues that may affect my business? Buy an advertisement in the paper? Do I lose the right to due process under the law? Have my corporate property seized?
If your doctor belongs to a group of 8 doctors and it is a corporation and they wish to express their negative view of Obamacare (whether you agree with this view or not) as a law and they wish to express this on behalf of their business…….are they silenced because of the form that they decided to use for their business?
Just because you have decided to incorporate your business doesn’t mean you have lost your rights as a citizen.
Corporations consist of people, no matter what size they are, from a small mom and pop corporation to The people who incorporated the business. The shareholders in the corporation who own part of the business. The workers who may also own the shares.
The NY Times is a corporation. Maybe we should get them to shut up too?
So when people agree with ‘corporations aren’t people’ and ‘money isn’t speech’ – ask them if they think the government should have the power to shut down the NY Times. Nobody will agree with that of course, but that’s the natural consequence of the doctrine. Its a corporation that spends hundreds of millions of dollars to publish.
On top of which the language play on ‘corporations are people’ is a short form for ‘the legal FICTION’ that corporations possess SEPARATE personhood. Its a fiction because the connection between the shareholders and the corporation is so obvious. So, to strip corporations of ‘personhood’ in reality means that we simply strip corporations of their SEPARATE personhood, And there are strong reasons why that concept exists in law.
On a visceral level, when one hears that ‘corporations are people’ it just feels wrong, doesn’t it? The word “For Purposes Of” is extremely important in the legal arena. It is an important qualifier for any given proposition. So when we say that corporations aren’t people, most people tend to agree with that proposition on a linguistic level. So, for purposes of linguistics and to discuss the meaning of the term corporation, for purposes of the English language generally, most people clearly can see a distinction between a natural person and a corporation. Hardly worth debating. But therein lies the rub because nobody is debating the common meaning of the term ‘corporation’ – what is at stake though is the application of the Due Process Clauses within the US Constitution. There are actually two of them. One is within the V Amendment which applies to Federal action and the other is in the XIV Amendment which applies to state action. The Fifth Amendment to the United States Constitution provides: “ [N]or shall any person . . . be deprived of life, liberty, or property, without due process of law” while its XIV Amendment companion in Section One of that Amendment reads: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law” Now of course the issue should become clearer because constitutional issues hinge on government power. So, when we ask: “Are corporations people?” What we’re really asking is this: Are corporations people for purposes of the XIV Amendment (V Amendment); such that the state government (Federal government) must provide Due Process to the corporation before depriving the corporation of life (corporate existence), liberty (the ability to engage in business) and property? This should illuminate how the emotional appeal of “corporations aren’t people” clouds the actual issue. Citizens United isn’t about the power of the corporations, it’s about the government and what the government is allowed to do. Personhood is merely the key to Due Process. Without personhood the government wouldn’t owe a corporation any Due Process, none, zero…..and that’s a scary proposition.
The Senate voted to discuss a constitutional amendment related to Citizens United/campaign spending. Considering that any constitutional amendment requires the votes of 2/3 of the Senator and 2/3 of the House members and passage of 3/4 of the state legislatures, it will not be passed any time soon.
I think that a constitutional amendment that clearly states that corporations are not people is the first that is needed.
I also think that campaign spending should be only that provided by public sources. No personal expenditures over a fairly nominal amount. No corporate spending, no PAC spending. The amount of money spent on campaigns is an obscenity.
With a crime such as the Deepwater Horizon oil rig explosion, individual people made the decision to use to faulty product. If it’s a general corporate crime, as in, corporate processes and procedures were used in the decision-making, the CEO should be charged and/or others of the top management. The behavior won’t change as long as individuals are not held accountable. Nothing is at stake here but corporate funds. The fines are a drop in the bucket considering their obscene profits and they are probably tax deductible.
I don’t understand why the fine absolves Halliburton from liability from lawsuits by those damaged by their actions. Aren’t these two separate things? One is the government suing for criminal behavior. The other are the civil damage suits by injured parties. The government can give them a pass on the civil suits? Not right.
I believe all the expenses related Exxon Valdez oil spill were tax deductible as cost of doing business. Even then, Exxon appealed the decision of the civil suit and got the damages reduced. And many of those who should have received payment still have not received it, others died without receiving payment.
And it isn’t just Halliburton.
NEW ORLEANS – British oil giant BP’s “gross negligence” and “profit-driven decisions” in the Gulf of Mexico was directly responsible for the worst accidental oil spill in history, Federal District Court Judge Carl Barbier ruled in New Orleans Thursday – to a tepid reception from those a possible settlement might benefit.
bettykath – the US government lets 2000 weapons walk, some of which are responsible for murders. Should the architects of Fast and Furious be held accountable for the murders?
Aridog,
Guess you didn’t really read it… Which is fine… You get the answers to questions you need….
aridog read it but it did not answer the questions he had been raising.
Darren….thanks, but on this thread at least, it is too late. Other than you, it has been a non-discussion. I’m not likely to ask questions again. Why bother?