Law and Order: Special Interests Unit
Not long ago, it was Corporate America -- not political figures like Tom DeLay and Jack Abramoff (who made contact with White House folks 200 times in the first 10 months of the Bush era) -- that was awash in scandal.
Remember Enron? Adelphia, Tyco and WorldCom? What's happened to them?
Not much, apparently. In a little-noticed report late last year, the editors of excellent Corporate Crime Reporter exposed a shocking trend in the world of corporate prosecutions. Under Ashcroft and Bush, we've become a nation of softies on business crime.
Federal and state prosecutors are increasingly offering major corporations - including Adelphia, Computer Associates, KPMG, Merrill Lynch, Monsanto, Sears,Shell, WorldCom/MCI - special deals - known as deferred prosecution or non prosecution agreements.
Under these agreements, prosecutors agree not to criminally prosecute the corporation to conviction in exchange for cooperation against culpable executives, implementation of corporate monitors, and fines.
It's clearly a product of Bush-era politics, with a major impact on how corporate crime is handled:
"It used to be that major corporations caught committing serious crimes would be brought to justice - convicted of a crime and sentenced," said Russell Mokhiber, editor of Corporate Crime Reporter. "No longer."
Now, under a policy implemented by the Department of Justice since 2003, major corporations caught committing serious crimes are not convicted of a crime and sentenced.
In fact, no major corporation caught engaging in accounting or securities fraud has been convicted since the Arthur Andersen conviction in June 2002.
As Bradford Plumer notes at MoJo, there are good reasons -- strategic, administrative, etc. -- for prosecutors to pass on pursuing some charges. But as then-Deputy Attorney General Larry Thompson revealed in a Department of Justice memo in 2003, cutting deals is no longer used selectively or to cut down on red tape -- it's become DOJ policy.
Plumer spells out two of the most glaring consequences of this trend:
[W]ithout the threat of conviction hanging over their heads, corporations have less incentive to avoid wrongdoing, especially if they know that if they get caught, at worst, they'll have to pay a fine, serve up the head of an executive or two, and then carry out a few nominal "reforms." After all, Arthur Andersen certainly didn't learn any heartfelt life lessons after cutting a non-prosecution deal in 1996, after engaging in real estate fraud.
Another potential problem is that the leeway that prosecutors get in cutting these deals opens the doors for abuse. In 2005, Bristol Myers Squibb, as part of its deferred prosecution deal over charges of conspiring to commit securities fraud, was ordered to pay a fine, make some reforms, and fund a chair in business ethics at Seton Hall, which just happened to be the New Jersey Attorney General's alma mater.
Where can we find some leaders who will get tough on crime?