Defending the Double Standard: Why Not Jail the Corporations?
The American Pavilion Goes Green at Cannes 2006
Ahmadinejad: Lost in Translation
June 2, 2006
Defending the Double Standard
By Russell Mokhiber and Robert Weissman
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| Enron's officials are convicted. But what about the corporation? Credit: Hamilton Spectator.com |
A corporation commits a crime. A federal prosecutor has the goods on the company. But the prosecutor chooses not to convict the corporation.
Instead, the prosecutor befriends the attorney for the corporation. And together they turn on the individual executives.
This is the new pattern of corporate crime prosecutions.
Increasingly, corporations are getting a free pass from prosecutors who don't want to do anything to harm the corporate entity.
In fact, today it is rare that a major corporation will be convicted of a crime that it has committed.
Instead, the corporation will toss overboard a number of executives -- all in an effort to save the corporation from criminal sanction.
When asked why corporations shouldn't be convicted of crimes they clearly committed, corporate defense attorneys come up with the same explanations.
Corporations are legal fictions.
Better to convict the individuals at the helm of the corporation and save the corporation.
Mary Jo White, former US Attorney in Manhattan and currently partner at Debevoise Plimpton, put it this way recently:
"There is no question that the primary focus of prosecutors is and remains guilty individuals. The entity is a corporate fiction. But it is obviously an important entity to those who work in it and those who invest in it. Prosecutors should think -- why is it that I need to do anything to this company? Why is this such a rare case of wrongdoing that it demands something on the criminal side?"
Last month, Corporate Crime Reporter released a report that profiled 34 cases where prosecutors -- confronted with solid evidence of corporate criminal wrongdoing -- have chosen instead to enter into a non-prosecution agreement or a deferred prosecution agreement with the corporation.
Seventeen of the 34 cases were settled with non-prosecution agreements.
Under a non-prosecution agreement, the prosecutor agrees not to criminally prosecute the corporation in exchange for fines, cooperation, monitors and changes in the corporate structure.
The other 17 cases were settled with deferred prosecution agreements.
Under a deferred prosecution agreement, the prosecutor charges the corporation with a crime, but agrees to drop the charges if the corporation fulfills its promises to the prosecutor.
The report finds that prosecutors have entered into twice as many non-prosecution and deferred prosecution agreements with major US corporations in the last four years (23 agreements between 2002 to 2005) as they did in the previous 10 years (11 agreements between 1992 to 2001).
And it raises the question -- are these companies too big to indict, too big to convict?
Increasingly, non-prosecution and deferred prosecution agreements have become the settlements of choice for prosecutors and corporate defense attorneys.
We believe that there is a good chance that the rise of these agreements has undermined the general deterrent and adverse publicity impact that results from corporate crime prosecutions and convictions.
Being a corporate criminal carries the heavy weight of adverse publicity -- and the potential of being barred from doing business with federal, state and local governments.
Also, individual citizens might shy away from doing business with convicted companies.
And it could very well be that the rise of these deferred and non-prosecution agreement deals represents a victory for the forces of big business that for decades have been seeking to weaken or eliminate corporate criminal liability.
The antipathy of business and business lawyers toward corporate criminal liability is deep and far reaching.
Many advocates for big business openly advocate for the elimination of corporate criminal liability.
One such person is Jeffrey Parker, a Professor of Law at George Mason University.
Parker argues that corporate crime simply does not exist and cannot exist. "Crime exists only in the mind of an individual," Parker said. "Since a corporation has no mind, it can commit no crime." Parker argues that a since a corporation is not a living, breathing human being, it should not be treated as a living, breathing human being in the criminal law arena.
But if a corporation is not a person for purposes of the criminal law, then why should it be is a person for the purposes of constitutional law -- where it is considered a person and is granted protections, including First Amendment guarantees of political speech and commercial speech, Fourth Amendment safeguards against unreasonable searches, Fifth Amendment double jeopardy and liberty rights, and Sixth and Seventh Amendment rights to trial by jury?
A double standard is being set -- if not by law, then by prosecutorial discretion. On the one hand, if you are a living, breathing human being who commits a crime, you will be prosecuted, convicted and sent to prison.
On the other, a large corporation will be deemed too big to convict and granted a deferred or non-prosecution agreement. And it is a double standard that is openly defended by corporate crime defense attorneys.
Last year, we asked Joseph Savage, a criminal defense attorney at Goodwin Procter in Boston about the double standard.
"Is there a double standard?" he asked. "Absolutely. And there should be. There can be no crime of a corporation without an individual act. It can never be the other way around -- a corporate crime without individuals acting. To me, there is a double standard. There ought to be a double standard."
Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime Reporter, (www.corporatecrimereporter.com). Robert Weissman is editor of the Washington, DC-based Multinational Monitor, (www.multinationalmonitor.org). Mokhiber and Weissman are co-authors of On the Rampage: Corporate Predators and the Destruction of Democracy (Monroe, Maine: Common Courage Press).
© 2006 Russell Mokhiber and Robert Weissman
Focus on the Corporation is a weekly column written by Russell Mokhiber and Robert Weissman. Focus on the Corporation columns are posted at www.corporatepredators.org.
The American Pavilion/Paramount Classics "Go Green" at Cannes 2006
By Susan Steeno / GS Entertainment Marketing Group
The American Pavilion, a home away from home for Americans attending the Cannes Film Festival, has joined forces with Paramount Classics to raise awareness of the issue of global warming in support of Paramount Classics' An Inconvenient Truth, the riveting documentary that weaves the science of global warming with former Vice President Al Gore's personal history and longtime commitment to communicating the need to reverse the effects of global climate change.
The Pavilion, with support from Paramount Classics as its official "greening" sponsor, will make its contribution to this worthy cause via efforts that include the use of biodegradable cups, plates, cutlery and napkins; the recycling of cans, bottles and paper; and the installation of reusable carpeting at this year's Festival. Additionally, the "carbon footprint" of The Pavilion will be offset by An Inconvenient Truth Executive Producers Participant Productions, which will be quantifying the amount of electricity used to run The Pavilion, then using that formula to purchase renewable energy credits in a process known as carbon offsetting.
"It would be irresponsible of us not to take advantage of an opportunity to do our part and to convey our message to the captive audience we have access to at The Pavilion," says Julie Sisk, founder and director of The American Pavilion. "Having Paramount Classics on board as our "greening" sponsor will help us make even more of a wide-reaching impact."
The waste created each year at the Festival is staggering. Every year, The Pavilion serves thousands of meals using paper plates and plastic cutlery, and innumerable beverages in cans and bottles. Additionally, carpet, signage and mass quantities of paper are utilized. Although Pavilion organizers have recycled cans and bottles for the past five years, this year marks the first that an all-encompassing, full-scale recycling program will be put in place to compensate for the amount of refuse and waste that is produced during The Pavilion's 12 days at the Festival.
In another demonstration of its commitment to sustainability, The Pavilion is working with Interface, Inc. (www.interfaceinc.com), an Atlanta-based carpet manufacturer that will be providing reusable floor coverings. The Pavilion is also attempting to secure only fair-trade coffee, tea and chocolate for use in The Pavilion's restaurant and coffee bar. Several other organizations, including Native Energy (www.nativeenergy.com), Stop Global Warming (www.stopglobalwarming.org) and Global Green (www.globalgreen.org), will also be supporting The Pavilion's greening efforts.
Sisk believes every organization's contribution to the anti-warming crusade is relevant. "As film industry professionals, we are powerful and influential evangelists, and our participation in this campaign is crucial," she says. "The fact that two prominent entertainment entities like Paramount Classics and The American Pavilion are embarking on the same mission speaks volumes as to the critical role the film industry can play in the green movement."
The American Pavilion, located just a few steps from the Palais des Festivals, is celebrating its 18th anniversary at the Cannes Film Festival, taking place this year May 17th - 28th. The Pavilion hosts a renowned restaurant and bar; digital lounge; a coffee bar; the Industry in Focus Seminar and In Conversation Series featuring today's leading actors and filmmakers; as well as private receptions and parties.
For more information, visit
www.ampav.com
www.ClimateCrisis.net
Ahmadinejad: Lost in Translation
By Little Red Email
It was October last year when we came home, flicked on the radio and listened aghast to the news that the Iranian president denied the Holocaust had happened and said the state of Israel should be wiped off the map.
"Christ," we thought, "this nut job's playing into their hands with this kind of rhetoric." Since then "the Cuban missile crisis in slow motion" as one US academic has described the Iran/US imbroglio has ratcheted up to high alert with Seymour Hersch of The New Yorker reporting that the White House is all prepared for nuclear strikes.
It would take just 12 hours to deploy nuclear weapons for a bunker busting strike that would kill a million Iranians according to conservative estimates commissioned by the Pentagon. Nuclear armed planes are now on constant alert and public opinion has been framed around those mad, mad statements on Israel by Iran's President Mahmoud Ahmadinejad.
But what if the pronouncements by Ahmadinejad that cast him as this season's baddie incarnate had been (a) mistranslated and (b) taken out of context?
When properly translated, the Iranian president actually calls for the removal of the regimes that are in power in Israel and in the USA as a goal for the future. Nowhere does he demand the elimination or annihilation of Israel.
He called for greater governance for Palestine. The word map does not even feature. And the president makes plain that the Holocaust happened, but, he argues western powers have exploited the memory of the Holocaust for their own imperialistic purposes. What the mainstream ran with is complete deception.
The deception has been aided by the fact that much of the media use an 'independent' company called Middle East Media Research Institute (Memri) for translating Middle Eastern languages. Memri just happens to be owned by two right-wing neo-con Israelis: Meyrav Wurmser, the wife of one of Dick Cheney's aides (and ex-special assistant to 'Strap-on' John Bolton), David Wurmser and former (?) Israeli Military Intelligence officer, Colonel Yigal Carmon.
Indeed a look at Wikipedia' s incomplete staff list seems to suggest a heavy Israeli bias in staffing and at least two more ex-Israeli Military Intelligence people. Still the little red email is sure that's just a coincidence, as is the fact that the Israeli army (presumably military intelligence) has also used this mistranslation tactic in the past.
And once Ahmadinejad had been brushed with the wacko Jew destroyer tag, it was a short hop, skip and ein Sprung before he was alongside Adolf Hitler in the pantheon of baddies. Like Milosevic and Hussein before him, Ahmadinejad's Hitler comparison is as sure a sign war is imminent.
Unlike Hitler though. Ahmadinejad doesn't rule Iran, nor does he control its foreign or military policy. The man in charge of all that is Iran's Supreme Leader Ayatollah Ali Khamenei.
Iran is a theocracy, and Khamenei is the theocrat-in-chief. To give you an idea of where Ahmadinejad lies in Iran's political hierarchy, note that no one can even run for the presidency in the first place without the approval of Khamenei and the Guardian Council, a group of six clerics and six conservative jurists that are selected by Khamenei.
Ahmadinejad serves the purpose of being a believable bogeyman. He'll find his Ph.D. in civil engineering and being a founding member of the Iran Tunnel Society useful if Seymour Hersch's bunker-busting nuke allegations come true.
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