Corporate crime

"Corporate accountability" redirects here. For social aspects, see Social accountability. For environmental aspects, see Environmental accountability.

In criminology, corporate crime refers to crimes committed either by a corporation (i.e., a business entity having a separate legal personality from the natural persons that manage its activities), or by individuals acting on behalf of a corporation or other business entity (see vicarious liability and corporate liability). Some negative behaviours by corporations may not actually be criminal; laws vary between jurisdictions. For example, some jurisdictions allow insider trading.

Corporate crime overlaps with:

• white-collar crime, because the majority of individuals who may act as or represent the interests of the corporation are white-collar professionals;
• organized crime, because criminals may set up corporations either for the purposes of crime or as vehicles for laundering the proceeds of crime. The world’s gross criminal product has been estimated at 20 percent of world trade. (de Brie 2000); and
• state-corporate crime because, in many contexts, the opportunity to commit crime emerges from the relationship between the corporation and the state.

Definitional issues

Legal person

An 1886 decision of the United States Supreme Court, in Santa Clara County v. Southern Pacific Railroad 118 U.S. 394 (1886), has been cited by various courts in the US as precedent to maintain that a corporation can be defined legally as a "person", as described in the Fourteenth Amendment to the U.S. Constitution. The Fourteenth Amendment stipulates that,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In English law, this was matched by the decision in Salomon v Salomon & Co [1897] AC 22. In Australian law, under the Corporations Act 2001 (Cth), a corporation is legally a "person".

Enforcement policy

See also: Police corruption

Corporate crime has become politically sensitive in some countries. In the United Kingdom, for example, following wider publicity of fatal accidents on the rail network and at sea, the term is commonly used in reference to corporate manslaughter and to involve a more general discussion about the technological hazards posed by business enterprises (see Wells: 2001).

In the United States, the Sarbanes-Oxley Act of 2002 was passed to reform business practices, including enhanced corporate responsibility, financial disclosures, and combat fraud, following the highly publicized scandals of Enron, Worldcom, Freddie Mac, Lehman Brothers, and Bernie Madoff. Company chief executive officer (CEO) and company chief financial officer (CFO) are required to personally certify financial reports to be accurate and compliant with applicable laws, with criminal penalties for willful misconduct including monetary fines up to $5,000,000 and prison sentence up to 20 years.

The Law Reform Commission of New South Wales offers an explanation of such criminal activities:

Corporate crime poses a significant threat to the welfare of the community. Given the pervasive presence of corporations in a wide range of activities in our society, and the impact of their actions on a much wider group of people than are affected by individual action, the potential for both economic and physical harm caused by a corporation is great (Law Reform Commission of New South Wales: 2001).

Similarly, Russell Mokhiber and Robert Weissman (1999) assert:

At one level, corporations develop new technologies and economies of scale. These may serve the economic interests of mass consumers by introducing new products and more efficient methods of mass production. On another level, given the absence of political control today, corporations serve to destroy the foundations of the civic community and the lives of people who reside in them.

Discussion

Criminalization

Behavior can be regulated by the civil law (including administrative law) or the criminal law. In deciding to criminalize particular behavior, the legislature is making the political judgment that this behavior is sufficiently culpable to deserve the stigma of being labelled as a crime. In law, corporations can commit the same offences as natural persons. Simpson (2002) avers that this process should be straightforward because a state should simply engage in victimology to identify which behavior causes the most loss and damage to its citizens, and then represent the majority view that justice requires the intervention of the criminal law. But states depend on the business sector to deliver a functioning economy, so the politics of regulating the individuals and corporations which supply that stability become more complex. For the views of Marxist criminology, see Snider (1993) and Snider & Pearce (1995), for Left realism, see Pearce & Tombs (1992) and Schulte-Bockholt (2001), and for Right Realism, see Reed & Yeager (1996). More specifically, the historical tradition of sovereign state control of prisons is ending through the process of privatisation. Corporate profitability in these areas therefore depends on building more prison facilities, managing their operations, and selling inmate labor. In turn, this requires a steady stream of prisoners able to work. (Kicenski: 2002)

Bribery and corruption are problems in the developed world, and the corruption of public officials is thought to be a serious problem in developing countries, and an obstacle to development.

Edwin Sutherland's definition of white collar crime also is related to notions of corporate crime. In his landmark definition of white collar crime he offered these categories of crime:

• Misrepresentation in financial statements of corporations
• Manipulation in the stock market
• Commercial bribery
• Bribery of public officials directly or indirectly
• Misrepresentation in advertisement and salesmanship
• Embezzlement and misappropriation of funds
• Misapplication of funds in receiverships and bankruptcies (O'Grady: 2011).

Corruption and the private sector review

One paper discusses some of the issues that arise in the relationship between private sector and corruption. The findings can be summarized as follows:

• They present evidence that corruption induces informality by acting as a barrier to entry into the formal sector. Firms that are forced to go underground operate at a smaller scale and are less productive.
• Corruption also affects the growth of firms in the private sector. This result seems to be independent of the size of the firm. A channel through which corruption may affect the growth prospects of firms is through its negative impact on product innovation.
• SMEs pay higher bribes as percentage of revenue compared with large companies and bribery seems to be the main form of corruption affecting SMEs.
• Bribery is not the only form of corruption affecting large firms. Embezzlement by a company’s own employees, corporate fraud, and insider trading can be very damaging to enterprises too.
• There is evidence that the private sector has as much responsibility in generating corruption as the public sector. Particular situations such as state capture can be very damaging for the economy.
• Corruption is a symptom of poor governance. Governance can only be improved via coordinated efforts among governments, businesses, civil society

See also

3

References

• Braithwaite, John. (1984). Corporate Crime in the Pharmaceutical Industry. London: Routledge & Kegan Paul Books. ISBN 0-7102-0049-8
• Castells, Manuel. (1996). The Rise of the Network Society (The Information Age: Economy, Society and Culture. Volume I.) Oxford: Blackwell. ISBN 0-631-22140-9
• Clinard, Marshall B. & Yeager, Peter Cleary. (2005). Corporate Crime. Somerset, NJ: Transaction Publishers. ISBN 1-4128-0493-0
• de Brie, Christian (2000) ‘Thick as thieves’ Le Monde Diplomatique (April)[1]
• Ermann, M. David & Lundman, Richard J. (eds.) (2002). Corporate and Governmental Deviance: Problems of Organizational Behavior in Contemporary Society. (6th edition). Oxford: Oxford University Press. ISBN 0-19-513529-6
• Friedrichs, David O. (2010). Trusted Criminals: White-collar Crime in Contemporary Society.
• Friedrichs, David O. (2002). "Occupational crime, occupational deviance, and workplace crime: Sorting out the difference". Criminal Justice, 2, pp243–256.
• Garland, David (1996), "The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society", British Journal of Criminology Vol 36 pp445–471.
• Gobert, J & Punch, M. (2003). Rethinking Corporate Crime, London: Butterworths. ISBN 0-406-95006-7
• Kicenski, Karyl K. (2002). The Corporate Prison: The Production of Crime & the Sale of Discipline. [2]
• Law Reform Commission for New South Wales. Issues Paper 20 (2001) - Sentencing: Corporate Offenders. [3]
• Lea, John. (2001). Crime as Governance: Reorienting Criminology. [4]
• Mokhiber, Russell & Weissmann, Robert. (1999). Corporate Predators : The Hunt for Mega-Profits and the Attack on Democracy. Common Courage Press. ISBN 1-56751-158-9
• O'Grady, William. Crime in Canadian Context. Toronto: Oxford University Press, 2011, p.175.
• Pearce, Frank & Tombs, Steven. (1992). "Realism and Corporate Crime", in Issues in Realist Criminology. (R. Matthews & J. Young eds.). London: Sage.
• Pearce, Frank & Tombs, Steven. (1993). "US Capital versus the Third World: Union Carbide and Bhopal" in Global Crime Connections: Dynamics and Control. (Frank Pearce & Michael Woodiwiss eds.).
• Peèar, Janez (1996). "Corporate Wrongdoing Policing" College of Police and Security Studies, Slovenia. [5]
• Reed, Gary E. & Yeager, Peter Cleary. (1996). "Organizational offending and neoclassical criminology: Challenging the reach of a general theory of crime". Criminology, 34, pp357–382.
• Schulte-Bockholt, A. (2001). "A Neo-Marxist Explanation of Organized Crime". Critical Criminology, 10
• Simpson, Sally S. (2002). Corporate Crime, Law, and Social Control. Cambridge: Cambridge University Press.
• Snider, Laureen. (1993). Bad Business: Corporate Crime in Canada, Toronto: Nelson.
• Snider, Laureen & Pearce, Frank (eds.). (1995). Corporate Crime: Contemporary Debates, Toronto: University of Toronto Press.
• Vaughan, Diane. (1998). "Rational choice, situated action, and the social control of organizations". Law & Society Review, 32, pp23–61.
• Wells, Celia. (2001). Corporations and Criminal Responsibility (Second Edition). Oxford: Oxford University Press. ISBN 0-19-826793-2

External links

• WhiteHouse.gov - 'Corporate Responsibility: The President’s Leadership in Combating Corporate Fraud', The White House