“TOO BIG TO JAIL”- BOOK REVIEW

 

This book attacks the way and manner in which corporations are prosecuted for their wrongful acts. The central theme is that prosecutors are not holding corporations accountable through the use of “deferred prosecution” or “non-prosecution” agreements that have been utilized in the prosecution of more than half of the large firms (58%) between 2001 and 2012. He thinks that corporate crime “deserves more public attention.” He highlights several prominent corporate criminal cases and explains how the corporation and government usually settle the cases by either having the matter not prosecuted in exchange for various types of payments, including restitution, costs of cleanup operations, damages and changes in the particular corporate culture; in the latter area, he explains how the companies can be required to pay for “monitors” who are entrusted with the responsibilities of ensuring corporate compliance with the negotiated changes that need to be made in those areas where the company has acted criminally. Some monitors have seized on to the power of their positions and have been accused of demanding staggering fees for their services. In return, the companies are forced to deal with the added expense. The author writes about how John Ashcroft, the former U.S. Senator from Missouri, and former U.S. attorney general, landed a monitor position (he was recommended by the U.S. attorney from New Jersey, Chris Christie), and then “showed billings of more than $7.5 million for the first five months of the monitorship, with a fixed monthly bill of $750,000 and hourly billings for additional team members”. Ashcroft tried to justify the “fixed” costs and fees. However, some legislators called Ashcroft’s deal a “no-bid” contract. The author says “One congressman commented: ‘In the Zimmer case [the company that was being monitored by Ashcroft], it is my understanding that Mr. Ashcroft’s firm was paid $52 million. To me, that is outrageous. I don’t care what you did. It is not worth $52 million. Even if you took steroids and hit 70 home runs, it is not worth $52 million”. “In response to the outcry, the Justice Department changed the rules to require a central review of the hiring of corporate monitors,” the author reports.

The author explains the difference between individual people charged with a crime, and corporations that are charged, and the variance in constitutional protections afforded to the two. Individuals enjoy more protection as “legal persons,” but corporations have many of the same rights. The trend seems to be that the courts are limiting the vast powers of the government- especially when it comes to “property” versus “liberty” issues- but even in matters more closely associated with “personal rights,” a concept not usually equated to corporations. The courts are starting to voice disapproval of genuine over-reaching and “shocking” behavior on the part of the government. In short, corporations are beginning to receive fairer trials. This is a good thing. I don’t think this nation is made better by further limiting our Constitutional protections in any case. The author would probably disagree with me on this point, but I believe he ignores the fact that victims can always proceed through civil versus criminal channels, and God knows, there are enough civil lawyers lingering around disaster locations, even before the fires are entirely distinguished, ready to offer their services. I can recommend this book, but only if you have an interest in this subject.

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