Corporate Crime Under Attack

The Fight to Criminalize Business Violence

Francis T. Cullen, Gray Cavender, William J. Maakestad, Michael L. Benson

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317523659
• Edition: 2
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

In exploring the criminalization of corporations, this book uses the landmark "Ford Pinto case" as a centerpiece for exploring corporate violence and the long effort to bring such harm within the reach of the criminal law. Corporations that illegally endanger human life now must negotiate the surveillance of government regulators and risk civil suits from injured parties seeking financial compensation. They also may be charged with criminal offenses and their officials sent to prison.

Part I
Corporate Crime Under Attack

1
The Criminalization of Corporate Violence

On August 10, 1978, three teenage girls perished when a rear-end collision caused their Ford Pinto to burst into flames. As we know, this was not the first time a crash had tragically claimed the lives of a group of youths; nor were these girls the first victims of a Pinto-related fire. Yet the teenagers’ deaths were unique in the legal reactions they evoked. Scarcely a month after the accident, an Indiana grand jury indicted Ford Motor Company on three charges of reckless homicide, and a local prosecutor embarked on a vigorous crusade to see that Ford paid for its alleged “crime.” Indeed, in 1980, Ford’s subsequent criminal trial earned national headlines and riveted the attention of all serious students of white-collar crime and corporate ethics. To this day, it remains a landmark legal case—one that has much to teach us about why attempts to criminalize business violence succeed and fail.

This book tells the story of the Ford Pinto trial. Making this story understandable, however, requires more than simply relaying the facts of the case. To be sure, the details are fascinating in themselves: the story’s characters are strong-willed and interesting; there is a David-and-Goliath appeal in a county prosecutor taking on a major American corporation; and the plot is sufficiently dramatic and its ending sufficiently uncertain to make the case suspenseful.

Yet a simple account of the facts does not explain why a criminal prosecution of this sort was undertaken. Certainly, other options existed. The drivers—or fate—could have been blamed for the tragic accident. Why even consider holding a corporation culpable for the teenagers’ deaths? And why contemplate labeling a major American corporation a reckless killer? To some extent, the answers lie in the unique history of the Pinto, which includes allegations that the subcompact had a defective fuel system (a gas tank placed dangerously close to the back bumper). But more is involved; indeed, the idea that a broader perspective is needed to address questions of this sort is the central premise of our book.

Thus, throughout our analysis, we attempt to demonstrate that the Ford Pinto trial is best understood as a sign of the times—the product of a general movement against white-collar and corporate illegality. We argue further that this attack on corporate crime—whether by prosecutors, politicians, or intellectuals—was itself a manifestation of broad legal, social-structural, and ideological changes that, starting in the 1960s, led up to, and then were energized by, the Pinto case.

In a broad way, Ford’s prosecution represents a dividing line—some might prefer the imagery of a “tipping point”—between two eras in the social control of corporate misconduct. In the preceding time period, confidence in corporate America was high, awareness of “white-collar crime” was limited, district attorneys were reluctant to prosecute “respectable” members of the business community, and prison sentences were rare and, if imposed, short. The Pinto case, however, reflects an ongoing fundamental social and legal transformation. Today, Americans mistrust the ethics of corporations, the concept of “white-collar crime” is part of our lexicon, prosecutions of the rich and powerful bring reelection if not fame for district attorneys, and convicted corporate executives can count on spending many of their remaining adult years behind bars.

Much of this book is about these remarkable changes and how, as a nation, we moved from a time when corporations could victimize workers, consumers, and the public with near impunity to a time when executives can be given 20-year prison terms. That is, this tale is about the multiple factors that coalesced not simply to expand “control” over wayward business practices but, more significantly, to expand the criminal culpability of corporations and their executives. The Ford Pinto case is a conduit for exploring this issue.

But this case is about one more, important matter: the criminalization of corporate violence. Although the nature and extent of Ford’s culpability are disputed by some, the corporation was prosecuted for causing the deaths of three teenage girls. We have grown accustomed to seeing executives hauled into courts for fixing prices, insider trading on the stock market, looting a company’s treasury, and massive financial fraud. In this instance, however, a courageous prosecutor was making the argument that when corporations physically harm someone, they should be held accountable by the criminal law just like any other lawless predator. In this case, he was claiming that Ford Motor Company was a reckless killer—three times over—and should be treated as one by the criminal law.

This was—and for some observers remains—a controversial position. In the course of business operations, there are times when defective products harm consumers, when workers are hurt or perish on the job, and when the public is possibly sickened by various emissions. It is one thing to say that the corporation should be sued (in civil court) or subjected to stiffer controls (by regulatory agencies). It is quite another to say that the criminal justice system should be revved up to go after the corporations. Ford’s prosecution was important because it reminded the nation that corporations whose decisions have violent consequences can, under certain circumstances, be prosecuted for these acts.

There was then—and is now—much debate over the point at which the line is crossed between a poor business decision and a crime of violence, and over how far the criminal law should expand to attack business practices that have violent consequences. The current project is meant to raise, and to provide an opportunity to reflect on, these critical considerations.

Plan of the Book

This book tells three interrelated stories. In Part I, we relay the story of how corporations, which emerged into dominant economic enterprises, relied during their development on their political power and sympathetic jurists to escape control by the criminal courts. This immunity from prosecution, however, was fitfully eroded over the 1900s as the criminal culpability of wayward businesses was expanded. This attempt to criminalize corporations was particularly encouraged by a social movement against white-collar and corporate crime that gained force in the 1970s. These legal and social developments created the opportunity for pathbreaking corporate prosecutions to occur, including in particular Ford’s trial on charges of reckless homicide.

Part II tells the story of the “Ford Pinto case.” The chapters in this section illuminate what it is like to use the criminal law in an innovative way to attempt to criminalize a major corporation that seemingly has endless resources at its disposal in its efforts to mount a spirited defense. This prosecution was, as we have and will argue, a “sign of the times”; it would not have been possible at an earlier date. But it also is a criminal case that individuals made weighty decisions to initiate (and, on Ford’s part, to defend) and that was fought in the unlikely battleground of Indiana. Although the trial has now passed its twenty-fifth anniversary, it is a legal and human drama that remains both compelling in its plot and contemporary in the lessons it has to teach us.

Finally, Part III tells the “rest of the story"—hat is, what has occurred in the years following the Ford Pinto case. Was Ford’s prosecution a rare occurrence or a harbinger of things to come? As intimated, the post-Pinto era has seen a spate of high-profile business scandals leading to criminal prosecutions, many of which have resulted in prison terms for corporate officials. But whether the criminal law is being used to its full potential to contribute to the control of corporate crime—including violence—is a more complicated matter. The advances in, obstacles inhibiting, and prospects for the criminalization of corporate crime and violence are investigated. This is a story that remains largely hidden from public view. We hope to make a contribution by pulling its various chapters together under one cover.

We use the remainder of Chapter 1 to construct an informational foundation for what is ahead. We pause to define key terms and then move on to show how white-collar and corporate crime were “discovered” in the United Stated. We briefly review the costs of corporate illegality. In particular, we show that beyond enormous financial losses, the dimensions of corporate violence are sufficiently disquieting to warrant public policy attention aimed at effecting its control. The discussion then explores the controversy of whether corporate decisions that have violent impacts are indeed “crimes.” This discussion provides a context for examining competing claims about the “criminality” of Ford’s production of the Pinto in which three teenage girls perished in a horrible, fiery crash.

Corporate Crime as White-Collar Crime: Definitional Issues

In the 1940s, Edwin Sutherland introduced and popularized the concept of “white-collar crime.”¹ This idea had the revolutionary effect of sensitizing subsequent students of crime and, ultimately, those outside academic circles to a range of behaviors that had previously escaped careful scrutiny: the illegal activities of the affluent.²

Although Sutherland’s own research concentrated on the pervasiveness of the unlawful actions of corporations, he proposed a considerably more comprehensive definition of white-collar criminality, which encompassed all offenses “committed by a person of respectability and high social status in the course of his occupation.”³ The very breadth of this definition has been a source of the concept’s vitality and ambiguity. The major advantage is that it prompted social commentators to investigate the full range of criminal offenses emanating from the occupations of the rich, including crimes by politicians, crimes by professionals such as physicians, tax cheating, crimes against businesses, such as employee theft or embezzlement, and crimes by corporate organizations themselves. On the other hand, while these various offenses share a common thread—if nothing else, they fall well outside traditional categories of street crime—important qualitative differences exist among them. Thus, the use of a catchall term like “white-collar crime” risks obscuring the differences among many of these offenses: for example, the act of a physician who defrauds the government by billing for false Medicaid payments and that of a multimillion-dollar corporation that markets a defective product. Therefore, when analysts speak generally of “white-collar crime,” it is not always clear what they have in mind.⁴

In short, Sutherland’s selection of the term “white-collar” to demarcate a realm of occupational behavior was not free of limitations. More controversial, however, was his tendency to characterize the occupational transgressions of the upperworld as “crime.” The controversy centered around the reality that many of the...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Part I Corporate Crime Under Attack
• Part II The Ford Pinto Case
• Part III The Fight to Criminalize Business Violence
• Index