MAY 1987 - VOLUME 8 - NUMBER 5
T H E C A S E A G A I N S T C O R P O R A T E C R I M E
Redefining Corporate Crime
by Willilam Maakestad
0n August 10, 1978, three teenage girls driving in a Ford Pinto were hit from behind on Highway 33 in northern Indiana. Within moments their car burst into flames and Lyn Ulrich, 16 and her cousin Donna Ulrich, 18, were burned to death. Eight hours later, Lyn's 18-year-old sister, Judy, who had third degree burns over 95 percent of her body, also died.
When an Indiana grand jury looked into the accident a month later, they voted unanimously to indict not the driver of the van that had rear-ended the three girls, but Ford Motor Company - then the country's third largest industrial corporation - on three counts of reckless homicide. The automaker was accused of recklessly designing, manufacturing and marketing the Pinto's unsafe fuel tank system.
Although Ford was ultimately acquitted, the criminal prosecution of Ford Motor Company reestablished an important precedent: In certain cases involving huyman health and safety, corporations and their executives could be required to submit not only to the scrutiny and sanctions of traditional federal agencies, but to state criminal courts as well.
Although the Ford case and its legacy have sparked intense debate over the past decade, the idea of using criminal sanctions to deter corporate misbehavior is hardly new. Nearly a century ago in the Shereman Antitrust Act, Congress used the threat of criminal penalties to check the economic behavior of the emerging modern business corporation.
Today, as the public's awareness that the costs of corporate crime go far beyond economic considerations has increased, so have the number of cases where corpoations are facing criminal prosecution. In a national survey of 60,000 citizens who rated the seriousness of over 200 acts, the Justic Department found that Americans "view purposeful dumping of hazardous waste as a worse act than some homicides." And one recent survey showed that nearly 70 percent of the public advocates prison terms for executives responsible for corporate offenses that have actual or potential violent consequences.
The legal consequences of this change of consciousness are profound: Corporations and their executives that endanger the lives of employees - through unsafe workplaces, consumers - through dangerously defective products, or even communities - through illegally dumped toxic wastes, will increasingly face serious criminal charges - including homicide - in the state courts.
The recent increase in the use of criminal sanctions to protect public health and safety can be traced to a landmark 1975 case entitled U.S. v. Park, where the U.S. Supreme Court upheld the conviction of the chief executive officer of a large retail grocery store chain that had maintained rodent infested warehouses despite two warnings from the Food and Drug Administration (FDA). Even though the defendant had apparently instructed a subordinate to clear up the problem after each warning, the Supreme Court held that in such important matters of public health and safety, strict criminal liability could be justified. Although Park was a federal case, it sent a strong signal to business executives and prosecutors at all levels by lending the U.S. Supreme Court's approval to the use of criminal sanctions in corporate settings. "Then, and only then," in the words of Peter Jones, former chief counsel and member of the board of directors of Levi Strauss, "will busy executives feel enough pressure to devote the time, effort and resources necessary to prevent activities that seriously threaten public health."
Four years after the Supreme Court upheld the Park case, Ford was taken to court in the landmark Ford Pinto trial in Indiana. In the summer of 1985, the stakes were raised even higher when a Cook County, Illinois judge found three executives of Film Recovery Systems, a corporation that used cyanide to extract silver from used film, guilty of murder in the cyanide poisoning of a worker. The judge concluded that the employees were willfully deceived about the hazards of working with cyanide, supplied with virtually none of the safety equipment required by law and provided with a woefully inadequate ventilation system for the 140 vats of cyanide solution crowded into the warehouse. (Under the Reagan administration's new agency guidelines, OSHA had been barred from inspecting the plant prior to the tragedy.)
Tort v. Crime
Tort law and criminal law are often used to address the same or similar wrongdoings. For example, even though owning and operating a motor vehicle is a socially beneficial and encouraged activity regulated by administrative laws and the threat of civil suits, criminal laws are occasionally employed to deal with especially reckless and life-threatening behavior - behavior for which resort to a civil suit or regulatory fine is deemed insufficient. Cases like park, Ford Motor Co. and Film Recovery Systems appear to signify that an analogous development has taken place with regard to owning and operating a business.
Society now appears to be willing to support not only costly economic, but also morally symbolic criminal sanctions to deter businesses from endangering human life by transgressing acceptable boundaries of morality and risk.
"Some corporate behavior is seen now as just too objectionable to allow it to be purchased under a tax or civil penalty system," said University of Southern California law professor Christopher Stone, one of the leading corporate law experts in the country.
There are more cases of corporate homicide - not to mention other lesser offenses - currently pending in state courts than the cumulative number of those previously tried during our nation's history. The vast majority of homicide indictments that have been brought against corporate entities and/or individual executives involve workplace deaths. While the Film Recovery Systems case is not solely responsible for the rapid growth of occupationally related homicide prosecutions, it has received widespread publicity and clearly has shaped the legal strategy in many recent cases. The legal and business communities around the country are watching other important cases:
Remarkably in the so-called conservative, Reaganomic 1980s, state's attorneys are fighting significant obstacles to bring the criminal law to bear against corporations under circumstances that just a few years ago would have resulted in only a regulatory action, worker's compensation claims, or a private civil suit.
"Both the public and prosecutors are beginning to realize that some accidents on the job can be equally outrageous as someone who hits a guy over the head and takes his wallet," says Ann Singleton, a Maryland prosecutor who responded to a fatal highway accident by filing involuntary manslaughter charges against a truck leasing firm owner that allegedly refused to maintain his fleet's brakes.
Virtually every survey on corporate and white collar crime indicates heightened public concern over not only the incidence, but the seriousness of corporate crime. The public's perceptions of what constitutes "acceptable risk" in daily life is also changing, especially as people become more aware of such things as the short- and long-term dangers of toxic chemicals in workplaces and communities.
Finally, some observers, like Russell Mokhiber, editor of the Corporate Crime Reporter, believe that state prosecutions of corporations for health and safety violations are responses to a decrease in watchfulness by the traditional federal regulatory agencies.
"It's a reaction to diminished federal civil regulation," said Mokhiber, "local district attorneys are just getting fed up and starting to prosecute."
Beginning in 1981, as one agency spokesperson noted, OSHA stressed "cooperation toward manufacturers rather than an adversarial role." In the last four years, the number of OSHA inspectors decreased by 17 percent; both the number of complaints investigated and the amount of fines for violating safety standards declined by 44 percent. In 1985, the U.S. Labor Department reported alarming statistics: work-related deaths had jumped 17 percent in 1984, while occupational injuries and illnesses had increased 11 percent.
Although it is risky to claim a direct link between weakened regulatory controls and increased death and injury in the workplace, prosecutors have not been reluctant to make this connection and to cite it as justification for criminally sanctioning corporate offenders.
"The more I looked into this, the madder I got," said Jay Magnuson, the prosecutor in the Film Recovery Systems case. "I felt that if OSHA had taken a look at that plant, Stephan Golab might still be alive. We stepped in because nobody else would do it."
There is no single source of incentives or disincentives - whether provided by the marketplace, government regulations, civil suits, or criminal prosecutions - that can minimize the economic, social, and physical costs of businesses that violate the law. It takes a strong combination of these countervailing forces to both redress and deter such misbehavior. Even Japan, this country's most formidable trade competitor, has sanctioned the use of criminal penalties against its wayward corporations.
Criminal prosecutions of corporations are neither a preferred approach to matters that can be addressed adequately by private civil suits, nor a substitute for the rigorous enforcement of regulatory provisions under OSHA or the EPA. Such criminal prosecutions have simply redefined business misbehavior that threatens human health and safety: What was once labeled "just bad business" may now be considered a criminal act.
William Maakestad is legal counsel and associate professor of management at Western Illinois University. He is co-author of the book, Corporate Crime Under Attack: The Ford Pinto Case and Beyond, published earlier this year by Anderson Publishing Company.