Karyn Strickler proposes a corporate death penalty (or read a copy with more links) which kills people, but leaves the corporation intact: (emphasis mine)
“The Corporate Death Penalty Act could provide that every member of the Board of Directors and executives of a corporation who knew, or should have known about the likelihood of their product or services to cause death, will be subject to the death penalty if their product or service results in the death of an individual or group of individuals.”
I’m sympathetic to her claims and to the general rationale that as corporations gain the kinds of power usually reserved for people, corporations must also take on the responsibilities and penalties people endure.
However, it is disheartening that in an effort to reign in corporate power, the country would resort to state-sponsored killing (or public executions which Timothy G. Hermach, President of the Native Forest Council, endorses as part of a corporate death penalty). Both of these acts are roundly criticized by progressives for good reasons. I think this recommendation is a consequence of buying into the “bad apple” defense which seeks to direct attention toward the individuals which behave badly and away from a system built to allow the bad behavior. It was used quite widely in the most recent spate of corporate crime, fraud, and abuse highlighted in mainstream news media for a few weeks last year.
Strickler quickly dismisses the current death penalty as “badly administered” yet wants us to expand this system instead of shutting it down. Consider some of the reasons why the current death penalty is bad policy, and consider how a corporate board would behave:
- Individuals don’t see others being killed by the state in the way that death penalty proponents would like. The Death Penalty Information Center tells us that the death penalty doesn’t deter people from murdering. Why should we believe that a board room of people will be less likely to kill?
- How many disempowered people in the corporation will we accidentally kill? The current death penalty has been used to kill people without adequately pursuing their guilt. US states that still have the death penalty will undoutedly repeat this mistake again. Some people on death row are acquitted before they are killed. We know this yet we allow states to continue to sentence people to death. This system is completely intolerant of mistakes. This alone is sufficient to bring fair-minded death penalty supporters to question, if not move to end, the death penalty.
- How will we avoid bias favoring certain corporations over others? The current death penalty is racist; An African-American man is more likely to receive a death sentence (“[…] in Philadelphia […] the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black”). The decision makers are overwhelmingly white men (“the key decision makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.”). These patterns of bias in the system makes the death penalty unfair and unjust.
- What lessons are we teaching about the power the state ought to wield? Is it wise to raise more generations of Americans with the idea that the state ought to have the power to execute its people? Will killing more people engender less behavior of the kind that results in this non-educational punishment (dead people can’t learn)?
- Have we exhausted all avenues for rehabilitation? Strickler’s remarks about corporate power are compelling and they clearly justify doing something to prevent any organization from acquiring that amount of power. But corporate power was not always so great. In the early days of incorporation, one corporation could not buy another. Corporations were held to their charters—descriptions of what they would do—charters were reasonably specific and they laid out a plan that had an end. This is described quite well in the opening scenes of “The Corporation” (either in the book or, more succinctly, in the movie). This is not to say that the past were the halcyon days of corporate activity—there was a clear need for a living wage where equal work was paid equally, a clean, egalitarian, and safe working environment, to name a few improvements.
So, taken together, I’m not convinced that killing people is wise, necessary, or going to solve our current problems. A more progressive framing for the debate over corporate power is needed. For example, corporations should be subordinate to the people. We should only give corporations as much power as we’re willing to trade away. We must be able to give a corporation a power and, if we don’t like how that power is being used, recall it. We should have the ability to stop giving corporations additional power after the people find that it cuts too close to the bone (or that what we gain in exchange is less important than what we give up). Let the businesses complain and threaten to leave. They’ll either be replaced (we got along without Wal-Mart, currently the US’ largest employer) or we’ll find that there’s plenty for the remaining businesses to do while earning a reasonable profit.
- We could decide that lifeforms are not subject for patent power. This would put a significant dent in the plans of the largest agribusiness giants like Cargill and Monsanto (which recently acquired another seed company which held many patents, undoubtedly a major reason for the purchase). The patent office would issue no more patents which are useful for stifling biological organisms and seed saving, and as a bargaining chip, we could let the biological patents which have already been issued expire. We could either slow the progress of finding new ways to grow more food (instead investing time and money in ways to distribute the food we can grow to the people who need it most), or pay researchers to do comparable R&D work with government money (money either raised in taxes or cut from military spending which currently takes over 50 cents of every government dollar). When we pay for the result, we have every right to demand its free and unencumbered use.
- We could repeal the Taft-Hartley Act in the effort to allow workers to more easily organize.
- We could institute a national living wage.
- We could give every American publicly-financed, privately-delivered health care instead of paying outrageously high sums for unevenly distributed health care. This would be one less thing to negotiate in labor contracts.
- We could tell the corporations what goods and services to provide and list tighter constraints on how to provide desired goods and services. Innovation would be needed to make the business work within these constraints. If, for example, there aren’t enough available trees to turn into paper, we need ways to live with reduced dependence on paper goods.
If we need a corporate death penalty, we could confirm progressive ideas instead of fighting for bargain-basement equality (where everyone is equal because we all ostensibly live at the edge of the state’s knife). I’d have to think more about all of the specific terms of such a deal, but here are some of the broad strokes I’d look for in a more progressive policy concerning curbing corporate power:
- Place financial liability in the hands of those who run the corporation (typically the board and the top executives) so that they are liable for their mistakes in a way that will make them pay attention. Incorporation is chosen, in part, to free oneself from fiscal responsibility for bad business decisions. Perhaps Coca-Cola executives would be less eager to take water from Indians to make soda, or perhaps executives would be more responsive to the people if they had to pay for their most profound mistakes. Innovation might not happen at these organizations as much as it did, but I’m not convinced that we should trade away so many of our rights for innovation. And I’m not convinced that the largest corporations (which are the worst offenders) are innovating to build things we don’t want and have no opportunity to reject (does anyone need a word processor that locks them into a program they can’t inspect, share, or modify? What was so profoundly bad about corn without built-in herbicide that compelled us to eat so much unlabeled genetically modified food?).
- Don’t grant corporate power to charters that don’t deserve it. Thus, we avoid granting corporate power (no matter how broad that power is) before that organization grows to become a social menace. Holding corporations to their charters seems like a fine idea to me as well.
- Proceedings must include freezing the corporation’s assets to prevent corporate leaders from getting rid of everything valuable if they learn that their corporation is on the chopping block. There has to be something to recompense victims of crime, fraud, and abuse, or distribute to the public.
- Forcible disincorporation must be possible for more than not paying taxes. In an interview with Jennifer Abbott, one of the directors of “The Corporation”, Abbott said that revoking incorporation happens frequently but it happens most often for not paying taxes. The needs of people need to rank higher and qualify for forced disincorporation. In late 1984, the Union Carbide plant in Bhopal leaked methyl isocyanate gas killing around 3,800 people, and disabling almost 3,000 more. Union Carbide claims that what happened was sabotage—”An independent investigation by the engineering consulting firm Arthur D. Little determined that the water could only have been introduced into the tank deliberately, since safety systems were in place and operational that would have prevented water from entering the tank by accident.”. Union Carbide’s chairman, Warren Anderson, is sought by the government of India, which has asked the US for extradition, but Anderson remains a free man in the US today. This lethal incident did not stop Dow Chemical from making Union Carbide a subsidiary in February 2001, so now Dow Chemical has more money to draw upon to fight the bad PR and pay any future fines. Dow Chemical says that they spent US$470 million in a settlement with the Indian government, but one has to wonder if there is any point at which complete dissolution of the corporation would be an adequate remedy. The money taken from Union Carbide could have been doled out to victims families, start hospitals, and fund grants without Union Carbide’s assistance. If so, one has to wonder why this has not happened and what could be done to bring it about. Killing more people is not the answer.