When Will Texas Execute a Corporation?

February 17, 2013 8:20 AM

In light of this FPP about Elizabeth Warren grilling some regulatory flunkies about how they never take banks to trial, I was wondering: Has anyone ever made an Equal Protection argument that their prosecution / conviction / sentence for some crime is discriminatory in light of the slap-on-the-wrist that corporations get away with? Has anyone ever succeeded with such an argument?

(IAAL, but in a different area, so I'm not much better off than a layperson in picking useful results from Teh Googles out from the chaff.)

I imagine you'd need a minority defendant for some drug crime, preferably one who was subjected to asset forfeiture, and you'd set him up against HSBC's wrist-slap for drug-money laundering. Why did the minority person get run over the coals, when the wealthy, "non-minority" "person" didn't? Is it not impermissible discrimination?

(Yes, I am aware that crazy prisoner lawsuits advance all sorts of wacky legal theories, that they gum up the court system, and that real lawyers roll their eyes. But I'm asking whether there's a specific example of this argument being made successfully, or a specific example of it being made in an appropriate case and rejected for some legally-sound reason.)

Actually, as an add-on bonus question, why don't prosecutors invoke asset forfeiture against corporate defendants? With the lower standard of proof, it seems that they could take all of HSBC or BP or Exxon-Mobil's assets pretty easily, and pad their budgets much more cushily than by stealing stuff from friends or relatives of drug dealers...

posted by spacewrench to law & government (9 answers total)

Well companies are not natural persons so they can't very well be strapped to a gurney and electrocuted. But prosecutors have caused companies to go bankrupt before, which is essentially a metaphorical form of execution. See Arthur Andersen, etc.
posted by dfriedman at 8:22 AM on February 17 [1 favorite]

Oops, sorry, my tongue-in-cheek title is not actually what I want to know -- I want to know about Equal Protection arguments comparing discriminated-against persons with similarly-situated corporations. Although I suppose specific cites to specific bankruptcy-causing prosecutions would also be interesting. (You can't discharge a criminal penalty or fine in BK, right? So these corporations can't come back from the dead?)
posted by spacewrench at 8:33 AM on February 17

Speculating here - but an equal protection argument would be based on a classification, and corporation vs. a real person is a classification that would get rational basis review, not any form of heightened scrutiny. So, any conceivable rationale, even an after-the-fact made up rationale, would be sufficient to explain the different treatment of the corporation vs the real person. So, someone could argue that a corporation has important differences (different type of guilt, perhaps?) than an individual person, which seems to me it would be sufficient under rational basis review.

Again, this is just speculation based on what I know of equal protection jurisprudence; I don't know much about corporate law or criminal law.
posted by insectosaurus at 8:49 AM on February 17

What you are seeing does not seem like legal discrimination so much as the vast gulf between the rich and the rest of us. Corruption and/or inequal access to highly paid legal defense. Friends in high places.
posted by heatherann at 8:55 AM on February 17

Corporations get popped for RICO charges all the time.
posted by Cool Papa Bell at 9:00 AM on February 17

It's important to at least understand the difference between "legal personhood", and "natural personhood". All legal personhood means is that a single corporate entity can sign contracts, enter agreements, etc rather than every single natural person who makes up that corporation having to individually sign every single agreement.

Merely because it has the character of legal personhood does not mean a corporation is a "person" in the same sense as natural person. Different laws and rules apply, even though analogies might eb drawn. For instance, a corporation cannot marry another corporation - though they might merge. A corporation cannot be drafted into the army - though it might have its assets seized. Etc.

These arguments about executing a corporation or this one about driving in a carpool lane with "a corporation" are all based on a silly premise that simply because part of the legal term of art for a corporate entity involves the word "person", then there's no meaningful distinction between a living, breathing human and a corporate entity created by said humans. There's many ways that corporate law could be reformed for the better, but this is a fruitless angle.
posted by modernnomad at 12:06 PM on February 17 [2 favorites]

There's many ways that corporate law could be reformed for the better, but this is a fruitless angle.

Fair enough. How 'bout asset forfeiture against corporations? That seems like a no-brainer to me.
posted by spacewrench at 12:09 PM on February 17

It has been over a century since a criminal defendant has successfully won a selective prosecution case (the name of the doctrine in question). So the answer is, by definition, no. I'm certain you are mainly thinking of that law school staple Yick Wo.

Selective prosecution is nearly impossible to prove. Specifically:

"defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886).

In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear evidence to the contrary."

U.S. v. Armstrong, 517 U.S. 486 (1996).

"The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Id.

In other words, the defendant must show the prosecutor actively was discriminatory against human beings, not that he or she was for corporations. A nearly impossible burden for anyone but a T-1000 series Terminator.

Corporate prosecution is quite rare and the offenses are generally for fraud. For some background, see this DOJ memo on prosecuting corporations. http://www.justice.gov/dag/cftf/corporate_guidelines.htm

Also, you'd be surprised how easy you can pick this out of the Google with legal training.
posted by Ironmouth at 12:16 PM on February 17

heatherann: What you are seeing does not seem like legal discrimination so much as the vast gulf between the rich and the rest of us. Corruption and/or inequal access to highly paid legal defense. Friends in high places.

Failing to see how your italicized text is not legal discrimination...
posted by IAmBroom at 10:52 AM on February 18