Have You Ever Been Convicted of a Felony?
By Russell Mokhiber and Robert Weissman
Have you ever been convicted of a felony?
That question is asked throughout our lives.
By people who are interviewing us for a job.
By courts seeking jurors.
By Little League officials screening coaches.
For background checks of all kinds.
People want to know.
If you have been convicted of a felony, then it says something bad about you.
And if you have been convicted of a felony, then people generally don’t want anything to do with you.
So, our advice — don’t get convicted of a felony.
But let’s say we had a system where you could commit a felony, and not be convicted of a felony.
Let’s say you rob a bank, and get caught robbing the bank.
And the prosecutor says to you — okay, we can do this two ways.
You can plead guilty to the crime. And be sentenced to prison. And you would have been convicted of a felony.
And that felony will follow you the rest of your life.
Or you can just agree to go to prison, and agree to pay a fine — and we won’t convict you of the felony.
So, when you get out of prison, there won’t be that black mark on your record.
And when you are asked throughout your life — have you ever been convicted of a felony? — you can tell the truth and say — no.
The prosecutor gets everything the prosecutor could get with a conviction — restitution, prison, a fine.
Except for the conviction.
Prosecutors would never accept such a system for human being criminals.
Because prosecutors believe they represent the public.
And in cases of serious crimes, they must defend the public’s right to get justice.
And justice demands not only punishment but deterrence.
And deterrence demands of us that we remember for our entire lives that rules exist for a reason.
Society says, if you commit a serious crime, the conviction will follow you your whole life.
Those are the rules for human beings who commit serious crimes.
For corporate criminals, the rules have changed, in just the past couple of years.
The change is this — a major U.S. corporation that commits a felony no longer has to plead guilty to a felony.
Instead, federal prosecutors will offer — and the corporation will accept — a deferred prosecution or non prosecution agreement.
And it is difficult to find a prosecutor, defense attorney, academic or politician who is not supportive of this trend.
They argue this — a prosecutor gets everything they could get from a criminal prosecution — fines, restitution, changing in corporate structure, cooperation against the guilty individuals — except for the conviction.
And a conviction would threaten innocent third parties — workers and investors. See Arthur Andersen.
So, with deferred and non prosecution agreements, you get the best of both worlds — change within the corporation, fines paid to the government, restitution to the victim — and few if any collateral consequences against innocent third parties.
This sea change has largely gone unnoticed in the mainstream media.
It used to be that a corporation caught committing a serious crime would be convicted of committing a serious crime.
Under the new system, outside of a few antitrust and environmental crimes, it is highly unlikely that a major corporate criminal will be convicted of a crime in the United States.
Corporations too do not like to answer “yes” to the question — have you ever been convicted of a felony?
They could be barred from government contracts, from the various markets. Consumers, investors and workers may shun them.
Had corporations introduced legislation in Congress to repeal corporate criminal liability, there would have been an uproar in the press.
But they have effectively repealed corporate criminal liability for big business — through prosecutorial discretion. It is unclear what the effects of this effective repeal will be.
But to those who defend the trend, they must answer this question — why the double standard?
Why not offer deferred prosecution and non prosecution deals to all major individual felons — drug pushers, money launderers and muggers alike?
After all, you get all of the benefits of a criminal prosecution, without the collateral consequences.
Prison, fines, restitution.
It’s just that, when you go to answer — have you ever been convicted of a felony? — then all of us — individuals and corporations alike — will be able to answer “no” with a clear conscience.