Transcripts For CSPAN2 Book Discussion On Why Not Jail 20240622

From where rena is going to dive in and the starting point of the conversation is to recognize our country has an epidemic of corporate crime, abuse and violence which we all suffer. It is evident in the financial crisis and the bp blow up and spill and numerous foot safety disasters that kill people from the new england compounding scandal, and workplace issues that rise across the country on a daily bases and more. You can step back saying we as a country dont do a good job with these problems because one marker is they persist over a period of time. We have a way of setting rules for corporations. You can fought imperil human life, threaten the environment, no you cant rip us off we dont do a good job enforcing the rules. We have to have inspectors looking at factories, supervisors to look at banks and we are not doing a good job funding those positions and they dont get enough support from the top to do such. When we do find violations, the hue is what do we do with companies that have broken civil or criminal law. What do we do . That is where renas book focuses. Both on that question and making the argument that we should focus especially on that third question because we did such a poor job on the first two. If you focus on criminal sanctions we can overcome limits and our inability to impose proper standards on corporate behavior. This is a chronic and acute problem. Todays New York Times has a front page story in the business section laws hinder in prosecuting gm employees and the opening says from the factory floor to the corporate sweep, employees saw indication of a deadly ignition defect and failed to report to the government. Yet, even as the prosecutors are closing in on the automaker the effort to charge individually employees hit an obstacle from legal hoop holes created. They struggle with oversight of carmakers gap according to experts who understand what is going on. I think that is a jumping point rena who will com plain and say the prosecutors should step up even with improper rules. We turn it over to rena steinizor, professor at the university of maryland law school, and author of why not jail and long time president of peace for reform. I appreciate a lot of you coming. I see a lot of familiar faces and that makes me happy. I think rob, who is doing a great job leading an essential organization in difficult times. And to russell, who really deserves a subscription to his news letter which is anything but dry and boring and finally to Catherine Jones who greeted you at the door. She is the person that sort of setup the nuts and bolts of this event and cprs secret weapon. I am very grateful to her. I have a simple agenda for my 20 minutes and that is to convince you that criminal prosecution of corporate managers and corporations themselves in the worst Health Safety and environmental cases should be among our Top Priorities as a nation and as a student. We should work in a concerted and relentless way to promote those kinds of prosecutions. On some level, you all agree that bad guys should go to jail. But our community as a whole does not spend much time, largely because we have been fighting blazing fires all over town, focusing on that solution and i think it is one that has a lot of poplar appeal and has the potential to break through the regulatory gridlock we find ourselves emeshed in. My first argument is a matter of ethical politics or political ethics. We do manage on some level to fight every day cases of fraud and embezzlement at the state level. At the federal level, there has been a shocking neglect of these kinds of faces. And as we begin to talk about the critical issue of mass incarceration which is the sort of outcome of all of the terrible things happening in our city to people of color i think it is important we raise the other side of it which is the justice system, some would say the injustice system in the country is very good at throwing poor people of color in jail and very bad about policing rich Corporate Executives and managers who are so reckless that people die in the workplace, as consumers, and we suffer damage to the environment and i am thinking of bp that was an Amazing Company for ten years and wracked on the knuckles many times until its final act was so sensational and even now the company is saying they are coming pack and their stock prices are back. This reflects discrimination of two classes of people and touts the goals of the criminal justice system. Long standing belief that criminal prosecutions are good because they punish people, deter crime, and in the white collar area nothing could decrease crime more and crime should reflect the values of our community. As rob also mentioned, we have great indication that the American People are absolutely disgusted by the failure to prosecute the banks for what happened in 2008. Polling from the bass association, a cosponsor of this events, shows people think enforcement is too week and it needs to be weak and emphasized in cases and there are other polls showing people are puzzled. They understand why violent street crime has been a prior y priority. I dont think they realize how many people are locked up for nonViolent Crimes. But they dont understand why bankers have seamingly seemingly walk ed away. There was a guy who rigged the wire order and wasnt going to be prosecuted. It with a too complicated and they couldnt figure out what to do about it. It is true the double standard is starting to make local news and i will tell you something if you have not heard about it you will be surprised. There are cases where drivers of defective cars that had fatal crashes. One a toyota and one gm car. Were prosecuted for reckless driving. And one guy got an eightyear jail term and served two years until toyota said we think that car was having a sudden acceleration problem. So we have a circumstances where lawmakers have a defective they cover over for years, sign huge settlements for the government, but in the mean time the average consumer for brought the car in good faith, has his conduct criminalized because the defective car causes an accident. It is disgusting. I would like to move to more pragmatic arguments. This may be controversial. I would really like to hear what you think about it. But my argument is we need a completely different preach to the arm that is being caused because Government Agencies are on their back foot. There is rampant regulatory dysfunction because they are underfunded, grossly underfunded, they have laws that are outdated and no chance of having them updated. As an example, you get a heavier penalty if you harass a wild borough in a state park than if you kill a worker through gross negligence. Laws are outdated. And finally the bureaucrats are kicked up over the head by the conservatives who have consi consiste consistently woo want to give the message everyone in the government is incompetent. So the agencies dont feel like they have a lot of backing. And they have, epa, cut its enforcement. Slashed it. It was one of the first things to go to balance the budget. If i were over there, ha, that is one of the things i would not touch until the last minute. We have agencies that have single issue epa is working on Climate Change and not on much else unfortunately. Osha seems to have abandoned all rulemaking. The fda has been virtually defunded on food safety. They dont have the money to implement new laws. And mitsa was absolutely looked as if it couldnt muster itself to even understand what was going on with some of the more sophisticated problems. It took plaintiff lawyers, thank you plaintiff lawyers, to discover the ignition switch was switched out. Gm kept it a secret so the people with the cobalt from earlier years were driving around with switches they knew were dangerous. Too many companies, large and small, a galloping across the tundra without any fear of being caught or prosecuted. This is a bad situation and something we need a new approach to address and to really change. If we go up to capitol hill, there is many veteran lobbyist here going up to capitol hill saying please give the agencies more money, you know what kind of reaction that gets. So it is not going to get better any time soon. And if we can find a way to advocatie for a sharp remedy. A remedy that is appropriately harsh in the right cases, i think it will have a lot of resina resinate with people who have a perception that the government is not protecting them and companies are only about the bottom line and dont care about their customers. My third argument is that we can make big progress here because changes and reaches already started. With that rob mentioned some of these but i just want to point out for people who may not have followed it, no reason you should, i am obsessed, doesnt mean you have to be. That is the whole point. One of the have beens is six notable prosecutions in five states that show federal prosecutors are becoming far more aggressive on health and safety. The bp company men in charge of the rig before the blowout and made an absolutely puzzling unusual and bad decision about a test result that they got in, without consulting with any of the engineers onshore, have been charged and will go to trial in the fall. At the Peanut Corporation of america that shipped out peanut paste with salmonella killed nine and made many sick. They have been convicted of felonys and sentenced on september 26th. New england com pound center has been charged with racketeering with a core offense of seconddegree murder of the 64 people who received these injections, got meningitis and died. 741 people is still struggling with the aftermath of the disease. Two of the pharmacy workers have been charged with deliberately ignoring test showing the clean rooms at the facility were infested with bacteria and fungus, and didnt do industry written standard tests, who were sending out medicine when only supposed to send it out to specific patients. They were sending it to list of name including mickey mouse and jesus christ. And they will go to trial, it is predicted in april. Massy energy, which sponsors the mine collapse that killed 29 minors, the worst tragedy in decades, the ceo, don blankenship, through cheering, people were calling every day the u. S. Attorneys Office Asking if he was going to indict blankenship. He finally did. If you read the indictment you will be amazed at the things the man was saying in writing and more interesting his Senior Executives wrote in the notes. They were getting production reports every 30 minute from the executive. Freedom industries. The people that ran the tank farm that had the leak that put an unpronounceable chemical that hasnt tested in the water supply in West Virginia has been charged and many pled guilty. The jenson brothers, perhaps the most sympatheting, sold cantaloupe infested with listeria. They have convinced the industry, thank goodness, that if you hurt people and people get sick off the food you send out you can face criminal charges. There are some common characteristics here i want to run through. My ultimate goal is to make these kinds of behaviors a component of the guilty mind you need to have to be prosecuted for a crime. They are very wide spread. You see them when you look deeply in the the incidents and there have been thousands of pages of objective reports that have been written about each incident. You look into them and you can gather a few threads in your hand. Everyone had ample warning they were doing something wrong because the regulators were buzzing around them. Massi energy, the Upper Big Branch mine was evacuated two times in the three weeks leading up to the explosion that killed the 29 men. They had hundreds of violations pending for the exact practice that caused the explosion but they persisted, appealed them and put them off. There is a relentless demand that people work harder and faster. Texas refinery under george bush, 15 people killed, the workers in charge of the unit that caused the explosion had been working 12 hour shifts for 29 straight days. This is common. Stove pipe management that has different responsibilities assigned, i am not sure if deliberate but effective. So no body knows the whole picture. Closely related to that, a system that discourages reporting any bad news. At the mine when the miners were saying the ventilation system wasnt working they were told they have kids they needed to feed so why dont they be quite or they will not be around on the job. The normalization of deviance is another. This is when people see the systems are failing, they are problems, they are near misses mounting up, but they ration rationalize it saying the risks are not that serious, we can accommodate this, as looping as are aware of this is it is okay and talk themselves into a group thing that is blind to what the ramifications of what could happen are. So, one last one is a lab with paper tigers. Big corporations have reams of papers. Manuals, directives, things put on the lunch room bulletin board. There is no so much of it is that is ignored, no body is aware of it, and there is no system for enforcing it. It is not done in the way the average blue Collar Worker can understand. That is very ambitious for me to say. If there were other professors of criminal law here they would be falling off their chairs at the idea that this kind of behavior should demonstrate guilty mind and that is largely part of the problem because there is this kind of refusal to say that when circumstances get worse and worse it becomes clearer and clearer that something dangerous is going on. The only people considered responsible are the ones standing there five minutes before the accident occurs and there is plenty of room in the law as i explain it, excessive length in the book, for making the argument when you make these chains they go back weeks months and those people are equally responsible if they ignore what happened and what the risks are. I will also say and this is something my colleagues, many of them would laugh about, we dont need new laws. We will not get them. That is sort of a problem. But we dont need them. Existing law has room for creative prosecutors, daring prosecutors, to bring these kinds of cases and be successful. We were talking before about the prosecutors and why they are afraid to bring creative cases and part of the reason is they absolutely hate to lose. If you talk to any of them they will admit this as their first point out of the block. The other problem is there isnt anybody pressing them in a concerted way to make charges supporting them to do it. Sometimes a prosecutor see the light about this kind of thing. One example is last week, the new York Attorney general announced he was going to prosecute the owners of a papa johns change that had stolen employees wages. Literally approperated what they were supposed to be paying the line workers and make their taxes fraudulent to cover tup. Standing by his side was the head of the department of wage labor and it was a wonderful example of the partnership that can go on between state and local prosecutors who have more flexible ways of approaching the problems than federal officials. But i dont overlook the Justice Department either. They are critical to the whole thing. Very important as we advocate and push and this is one of the reasons i am concerned and interested in these manager policies. These are not policies made at the line worker level. Making them central. You should, you would be really surprised by some of the things that go on and how obvious it should be that peoples lives are in danger. I want to say that we have already begun work thanks to the Public Welfare foundation, we actually are working on trying to make connections with state and local prosecutor and encourage criminal prosecution. One of the cases that were aware of and talking with the activists in new york, is a case routine Case Construction Company send a bunch of workers and without checking where the loadbearing walls are of the car dealership that they want to demolish. The workers go in and start tearing it down, course the loadbearing wall is the first thing the hammer at and the whole thing collapses in a manner skilled. Thats the kind of think these cases go from simple, to complicated but they really are found that people are put in these types of positions and i suggest you see the criminal laws for that answer. [applause]. You dont have to read the thousands of pages because she read them all and wrote a great book about it, so we can just buy the book. The first thing i would say is prosecutors are human beings too, rena mentioned that what they hate doing is losing, they had to go to trial and lose, the great thing about this book and a bunch of other books that have been written now is that its going to give them space to act. Renas book is like a roadmap, if i want to bring this case, how do i do it. So the first thing is that this book is a cornerstone for what i call a new wave movement, its in the context of a group of citizen academic reporters and activists who are moving together in the first time in probably 20 years. We were talking earlier, before we came here about the books that were written about corporate crime. Rob and i were writing columns about it that wound up in books, there is a lot being written. Our first interview ever, we do a question answer was Rudy Giuliani, y Rudy Giuliani . He was a republican, was a republican, u. S. Attorney in new york, criminally prosecuting people for corporate crime as a launching pad for becoming mayor of new york. The prosecutor rena mentioned in indiana prosecuted the Motor Company for homicide. Conservative, approached approached by the families of the dead teenage girl and there is a book, an article written by mike dolly that reprinted the memo when ford was saying hey if we recall this how much would it cost to bring back the cars and fix them . And on the other side of the Balance Sheet how much is a life worth . So once the Movement Starts its not about left, right or democrat, republican its about human values and justice. So this is the cornerstone book and the movement. The citizen scholars, lets look at a few of them brandon garrett, wrote a book called too big for jail. Duke University Professor is coming out with a book called capital offenses. David david allman from the university of law School Rights criminally prosecuting it environment crimes. You have your citizen reporter talking about american injustice in the age of the wealthy. Upcoming book is about corporate crime focused on what rena was talking about, this failure prosecutors, why no criminal prosecution . There are citizen activists, many in this room where this is the hub of citizen activism against corporate crime. Who are joining with these academics and reporters, youre starting to see the movement. With this movement is long living liberals, traditionally law and order you think conservative republicans. Thats why giuliani was prosecuting corporate crimes. Because it was criminal prosecution first, liberals but now you see this sort of more law and order liberals. They they would agree with president obama, as you know this president visited a federal prison this week, he they would agree with president obama that we shouldnt be throwing filling our prisons with nonviolent first offender drug offenders. Instead, lets focus on Violent Crimes. I would argue, and rena argues that the Violent Crimes that you focus on are the kind the cases she focuses on her book. Peanut corporation of america, nine dead. Lets focus on those Violent Crimes. Rena has a prosecutors mentality, she delved deeply into facts of all of these cases and built a case for corporate criminal prosecution. When we started our publication years ago, there were prosecutors of renas mindset who took corporate crime seriously. For example, there was a District Attorney in los angeles, his policy was any time there is a death on the job in Los Angeles County he would investigated as a crime. Now he didnt always prosecuted as a crime but he would investigate every death on the job as a crime. He brought a lot of cases, homicide, Reckless Endangerment Reckless Endangerment cases against companies and executives in Los Angeles County for the deaths of workers. Now its starting to come back in Los Angeles County. They are restarting that program and so, in october 2012 there is a young man named jose who was working, these are the kind of factual see in her book, he was working at a Bumblebee Tuna Processing Plant at the end of the day a 35foot long cylindrical oven as part of his job at bumblebee. The oven was used to sterilize cans of tuna, his coworkers were on aware he was inside the oven when they loaded 12,000 pounds of tuna, tuna, close the door and started the oven. During the twohour sterilization process the temperature in the oven roasted 270 degrees and his burned remains were found by a coworker afterwards. The los angeles District Attorney of investigated it as a crime. Now bumblebee, and to others are facing criminal charges for willfully violating safety rules. Now bumblebee will have to answer in court. Thats one case. There are literally, literally, i think the one thing that upsets me the most is when you see these worker death cases and you see osha fines the company 20000, or 70000. Why is that the case . Now its true the laws are incredibly weak, but there are criminal prosecutions that can be brought and david michael, the head of osha should head over, i think rena told me this in an interview, head head over to the Justice Department and sit down and say whats going on here . Criminal prosecuting people in upstate new york for mistreating cats, maybe they should be criminally prosecuted, these are people who are dying on the job, human beings. Another case thats just starting to come into the press, are these auto cases, the one ive been looking at is jeep cherokee, similar to the pinto they put behind the rear axle, someone accidentally reruns the car, maybe recklessly, the passenger inside the jeep survive the crash but the gas leaks there is an excluded explosion and they are incinerated to death. The person who rear ends the car ends up in jail. No criminal investigation occurs. This is a dirty deal, including the socalled recall when they said lets put a trailer hitch on, and youre going to be reading about this case in the press because there is a grass move Roots Movement among people who witness one of these incinerations and got so upset she started to petition online to criminally prosecute, criminal investigation of the company and executives. There is like like 10000 signatures in a few months. The families, of the drivers who rearended the car and their loved ones are in jail, for what wouldve been if Bender Bender of that gas tank wasnt right there, this is the kind of double standard that is being talked about that that engaging in criminal activity will end up in jail but if they engage in criminal activity they get a bonus. The reason i believe why not jail . Is the cornerstone of this new movement, is because its written as a roadmap to prosecutors as on the one hand and for citizens who enlighten them and to generate this new movement for corporate crime. Now there are problems to get into, rena talks in the book about deferred prosecution, and the matthew energy case which is the 29 miners who died, the prosecutor who has proceeded against executives looked at the company and entered into a nonprosecution agreement. This agreement is hey, were not going to prosecute you pay a fine. Some of these five are huge, by the way those fines should not be going to the treasury department, but were not going to prosecute them. Thats one thing thats happened they say lets we dont we dont want to try to win this case so well have a nice agreement with you, pass the money that will be at. The other is a deferred prosecution agreement these were initially intended by the Justice Department and the u. S. Attorney to clear the jail of minor first offenses. Okay will charge you, yeah youve broken to the high school to get an ipad this is your first expense, we will defer the prosecution and if youre a good boy or girl, in a year we will drop the charge. That was the intent of that. Now these giant corporations are getting it. For these horrific, and that switched about ten to 15 years ago used to be plead guilty pay the fine were get up at probation officer at your company. Now its a revolving door, most recently couple of horrific examples, a former attorney general spinning in and out of the Justice Department to represent the big banks, the Justice Department refused to prosecute. That happens to the federal government and thats going to be a key issue in addressing this and trying to figure out how to get to where we need to get to. We have a few additional remarks and then will open up the conversation. I want to jump on a few points, first we want to thank those who put the event together, Katherine Jones and gary baumann and others who helped, we appreciate it very much. We started talking about the world of corporate whitecollar crimes, this is the first points theres only only three for me to make so if i start making six you can come enough. Theres a distinction between prosecuting individuals and corporations, i think theyre both important. Renas book also makes the case for doing both but her focus is on the individuals because theres Something Different that happens when you hold individuals accountable, one of the problems we havent dealing with issues of corporate crime and violence is the future of responsibility. Actually making some actual person accountable and responsible for what goes on, you actually have to go after the corporation to to that. But theres a different pizza bout going after the individual so a big portion of the book is about going after the individual executives, individual individual managers, not the lowerlevel people but the top people in decisionmaking roles, but the people not just the corporation. Thats the first thing that comes out importantly in the book. The second that rena talks about in her remarks and also extensively in her book, apart from the concern about losing cases, there is resistance in worrying about the guilty mind calm, is it fair to go after the ceo and hold him or her responsible for something that happens on the shop floor the same way you hold a history criminal responsible for their decision to break into a house and rough up what they who they found inside. The person who did it, they obviously did with her hands and what theyre doing, their mind is guilty you can see that very clearly. The manager, the executive, harder at least abstractly executive, harder at least abstractly to know are they really responsible. I think what comes out in the book, when you look at the actual cases which rena does in the book, how many distraction go away . Not that executive should have known, not in an abstract world they should have, they did no, they didnt push the policy that led to the harm. So some of this policy of guilty mind issue goes away when you look at the actual specific cases and i think thats in part why the recent prosecutions are moving forward. There is still a hard abstract level question to get into about where exactly do you draw the line and you can do a lot of interesting hypotheticals, how much, when is it too remote to go after the executive, but you can leave those difficult cases aside and you still have a lot of easy cases, because it turns out by and large, the ceo or some highlevel person knew about what was happening, pushed for it to happen, signed off on the policy, and basically was responsible for any normal sense of reality for what happened on the shop floor or in the car crash, or on the oil platform. Thats one of the key issues, but one of the great things about the book as it shows that even though you have to deal with this at a conceptual level when you look at the actual cases, a lot are not so complicated. Let complicated. Let me just say parenthetically, not to contradict russell that this is a roadmap for prosecutors, because it is, but its not like a foreign road map its a really good book to read. You care about these issues and social justice its a good book to read. I go back now to the third points is to pick up on russell thing and talk about institution and the issue of not just looking at the individuals but looking at the corporations and the corporate structure. I think one reason its so important to go after both the individuals and the corporations is that corporations are so powerful and malleable that if you do one thing, they just let it go but if you hold top people responsible if the corporation can get get off than that group that make up the corporation will throw out a sacrificially him and just keep going. So it is really important to go after the corporation as an institution in an entity entity as well as an individual. Weve had a difficult time doing that highway of the federal government in the last ten to 15 years because of the problem russell talked about. In some areas of the law there have been aggressive and appropriate criminal prosecution, like for environmental crimes they do a good job, but in a lot of other areas and most acutely, financial crimes they do a horrible job. In fact they run away from criminal prosecutions altogether and replaced prosecutions with the ca idea of deferred prosecution agreement or the nonprosecution agreement which is basically a deal not to prosecute, not to criminally prosecute in exchange for a promise by the company, usually a bank but not always, not about violate the law and the future. Which is not much of a deal because you not supposed to violate the law anyway. But this is become the norm and dozens of cases thats happening every year now since around 2000, much worse in the last five to seven years. I think maybe the worst example or another contender of the worst example is k sanibel hbc, the bank that company was involved in Money Laundering on a scale that is it the hundreds of millions of dollars and theyre doing moneylaundering on behalf of large scale narco traffickers and countries of the United States considers to be enemies. We have come to expect now if you crash the Global Economy and you throw people out of work any therapy bother homes, you not being criminally prosecuted for that but you would think at least if you are enabling narcotraffickers and at a large scale and you are 16 companies that the countries that the United States considered enemies you would be prosecuted, you think there be prosecuted but theyre not. Thats an example where a guy in charge of permit criminal prosecutions at the time said we cant go after them because were worried about what will happen to the Global Economy if we criminally prosecute them. That becomes a justification. Thats literally too big to jail are too big to prosecute from the prosecutor. This is a huge problem, again i said three points this is a third third one, concluding note the good part of that story and the sort of peace that goes with this that rena and russell talked about, hsbc may have been a Tipping Point and whereas the whole thing started become unsustainable, thanks all the pressure that russell mentions focused on this issue, its harder and harder for the Justice Department to enter into these kind of deals. They are still doing it but we are now seeing the first actual prosecution. Where theres a deal, theres a plea agreement, but theres a plea agreement to criminal prosecution we seen this in the last few weeks with a Big Marketing case even then theyre going to still its a step forward that the Justice Department now feels good about entering into these agreements by forward. Its a serious problem its becoming worse in terms of enforcement issues in the last 15 years, but i think were starting to see it cycling back in a different way. We have an opportunity to push it so if there is some discipline on corporate misbehavior, i think the only thing i disagree with rena about in the whole thing is that we for sure have existing authority, but we do need more laws. When he lost to make it easier we dont want just prosecutors to say it yet we can figure out how to do this we want all prosecutors to do it. That involves mostly political well but it will help them if they have more legal tools and i think theres a variety of things going on to make that happen to, also for sure uphill, but i think were moving in the right direction on those issues. So lets pause right there thats it for the panel and would like to open up for some conversation. If you would like to raise a question or make a brief comment you should raise your hand and identify yourself, and. This is a great panel i have all kinds of questions, i will limit myself to two. Which might turn into three but thats after robs. The point about gpas having once been one of the initial sentencing reform of lowerlevel reforms, and corporate crime leniency it mimics the criminal justice form or evokes the criminal justice are you worried that therell be whitecollar criminal . [inaudible] can i be the first one and then i will, i actually am extremely concerned that whitecollar legal will be undermined in the over criminalization, legislation that we keep getting promise. On the hill these days, if you have a strange bedfellows it is one of the only ways to get something done, so in this particular case, we have the end of naacp which is justifiably concerned about mandatory minimum sentences and overcharging, and mass and mass incarceration, and president obama has been incredibly progressive in his leadership on those concerns, but they are in a coalition with the coke brothers, general counsel. With a slew of other people, so senator promised us just a few days ago there was going to be big legislation introduced to solve this problem, and james and i who worked very closely together patrolling the hill and he does a lot of the patrolling, i mostly sit sit and ache him about it, we want to get her hands on that though right away because im feeling quite paranoid about it. I think they could try to re find in a way that rob was hitting the nail on the head about what it should be, but it could be defined to mean i actually see it with my eyes, i put my hands on the machinery and thats the only way i am liable. Which would make these cases very difficult to bring and it will be a big bill, it will be one of these bipartisan solution that we all love so much and people will be very anxious to get something done because basically they dont do anything most of the time and i think its a real serious danger. So, i email rob what, once every three days of whining, and moaning. Uplifting and encouraging. But worrying about this. And pas, gpas. Number three what part of gpas are criminal, and gpas there is a criminal charge, the company is charged with a crime, theres usually a statement of facts admitting to criminal wrongdoing, then the prosecution is deferred over a period of time, usually two or three years and if the company plays by the rules of the agreement there is no criminal charges. If they dont the criminal charge will kick in. And and pas just very similar to a declaration they actually government gets a pound of flesh but were not going to criminally prosecute you but we want you to pay a fine or a sum of money. The second question the way this came about with gpas and and pas he created something called the hold memo, at and that is guidelines to prosecutors on how to criminally prosecute corporations. The fact is you take into account and the reiterations of the holding memo one of the factors was you have to look at collateral consequences to the company, if the collateral consequences, theres a whole back story to this about the corporate crime lobby lobby and the government to back off on guilty pleas and criminal prosecutions, it was in that context, but but these series of memos told u. S. Attorney if you think the collateral consequences outweigh the benefits then go with a deferred nonprosecution. Of course, they dont take it bad into consideration when they, after you and me when they, after you and me, there are collateral consequences, i wont be a bit to get a job, i wont be able to vote, i wont be able to vote, i wont be able to get a job in the community. So the way you would cabinet would be to tell u. S. Attorneys we would not be able to do these agreements with Big Companies anymore, if you get them with a statement of facts showing they violated a criminal law then they either get a guilty plea or go to trial. I want to just say very quickly and you hear over and over again that author anderson is the reason for this policy. I think i would say 80 of the new stories reporting on these things say, and of and of course the reason is Arthur Anderson. He invented, all the reasons why they rip you off, everyone thats one thing. Arthur anderson and their client clients were cleaned by the hundreds and thousands were leaving long before the Justice Department indicted them, and the Justice Department indicted that because they were shredding paper, tons of paper for weeks until the fcc knocked on the door and said please we would like to see some evidence. So they were indicted and they were convicted, and they went up to the court of appeals and the conviction was upheld but in the Supreme Court after the fact said all we dont like some wording in the charge to the jury, so we reversed the conviction. By then the company was long gone. It isnt true to say that Arthur Anderson went out of business only because it was criminally in diet, it was it would out a business because nobody wanted to do have anything to do with it it had such a bad reputation. Couldnt resent Arthur Anderson makes me vomit in the mouth. Hello i was wondering in respect to the allegations is their role between the Justice Department when they take place whether to prosecute, what are the interactions . They only referred historically in recent past about two to three cases per year. They say the reason is because the law, which is weak, and we dont really disagree by the way, i would love to have new laws, that would be fabulous. Just trying to make the best, make a silk purse out of a sows ear. It is only misdemeanors, but theyre all sorts of other charges you can bring, lying to the government, obstructing justice, destroying evidence, wire fraud, there is a whole series of other violations that could be alleged which is what the u. S. Attorney did in the blankenship case. Are there cases where osha settled out with the company, a chemical in louisiana and they settled out of court . A serious violation would trigger that. There been a number of banks entering into a whole series of these and they all seem to be for the same kind of violation, the fraud and things like that. What do they really prosecute something for this, if someone violated will they be sanctioned for that speemac you mean when did they come back and say you didnt behave yourself so now were going to start a criminal case . Rob has done a study on that and so i will defer to the him i think the answer is not all that often. Brenda all of them have these agreements but it was gps when they had they said working to criminally charge them but will prosecute you for the old think as you violated the agreement peernet. Thats the only thing i know of where theres a repeat wrongdoer got caught up in the first deferred bike prosecution. They say you hire a corporate monitor and he set up a very elaborate system or the corporate monitor is a watching over what the company is doing, do generally its doing the friend of the its a friend of the prosecutor. One of of the greatest advocates of this was chris christie, the governor of new jersey, and he was hiring his friend in bluechip law firms to be the monitors, he also somehow engineered a contribution to Seton Hall Law School as part of one of these agreements and ended up getting up called on the hill for a hearing to ask him why he was doing all of these bizarre things and he ended up walking out of the hearing. I actually anticipate that if his, as his president ial Campaign Goes on, some of these shenanigans will come up again and thats a good thing because hes an example of how they can be done, its not just a choice to do a deferred prosecution agreement for hsbc, which is a terrible choice as rob explained, its also in the implementation there can be a lot of corruption. Just to say that Alpha National resources, which was the successor of Massey Energy got one of these, when they sent their reports back, this is one of the very few reasons why am critical, the only reason why im not a and of the u. S. Attorney when they sent 34 up reports and he wouldnt release it to the public. So very often, they are put under a monitor and required to do all of these things but we cant see what they have done because they are not public and that, yet another aspect of this that needs to be pushed. Were involved in cases like this where we tried to get reports under the freedom of information act and we failed to succeed. I think theres an answer to your question there is little to no value. Yet a lot of money one of the books that russell mentioned talks about the compliance efforts in some detail, as much details one can talk about it, and he is a little less harsh on us then in general. But in conclusion. Theres one or two companies where theres a change and its because the top management says this is out of control and we dont want to have criminal charges. There there actually tougher on this one they found there is very little change as a result of it and some of the information as you are suggesting. He also makes the point which is an important that these kind of agreements have exploded under obama, theyre much more common than they were under george w. Bush even. So that is also embarrassing, the holes in our Justice Department had a real blind spot when it comes to these kinds of things. Lets do rick and then gary again and then thank you all for putting up with the hot life on a hot day. Thank you all i have two questions one other creative opportunities for more advanced prosecution when you have inherently unsafe industry. You have fires every week in this country, you have cities in danger you have financing crimes in these industries, Reckless Endangerment, maybe a misdemeanor in many cases you seem to suggest that a line here between civil and criminal so im wondering what your thoughts are if you can do something before massive fatalities to prevent these . Second what goal do you think judges would say where judges rule to change the name of a company to teach the company a lesson what you recommend needs to be done to change how judges handle things . Great questions, reckless homicide is what i was talking about and thats a felony. It doesnt require the intent that you come to work saying im going to murder some workers, because i would never say Corporate Officers really do that, its more of a reckless ignoring, a willful blindness to very dangerous circumstances. As for preventing things, the criminal law is not the best tool for that, its really does punish, he closes it closes the barn door after all the horses have gone away. I do think if there are more criminal prosecutions we might get a time, we make it to the point when companies would say you know what we need some regulations, that would be great the refinery things where there are buyers, people are very often adley injured, not killed if not killed. Im very glad russell brought up the los angeles da who was really aggressive on these things and has resuscitated his whole program, that would be maiming not just killing but maiming. Did i get everything . Judges only act. We have to mention jed ray, who is District Court judge in new york who has done more to fight deferred prosecution agreement than anybody, he just rejects it. Unfortunately he got reversed by the court of appeals but in the citibank case he just said im not going to accept the settlement, i dont understand why youre doing this. My name is katie were currently in the process. [inaudible] weve talked to a number prosecutors and to others but you didnt mention today things about protection of witnesses and victims, im wondering if those things came up in your research and if you can speak to that. What do you think enabled the prosecutors to overcome the challenges that theyve experienced . I understand why training would be a problem and its especially a problem when its thes to the police. So in worker deaths, sometimes police are called, sometimes theyre not were beginning to discover osha gets there a couple of days later, its very, very important to preserve the crime scene of course. People may not realize, for example that there should be no way that the tuna oven was closed with someone inside, there should have been an alarm or some kind of a check. So training is a very big issue, protecting of witnesses, i have to think more about that. What was your last question . How do you think investigators and prosecutors were able to overcome when they became successful . They were very high profile, very disturbed me and really a lot of investigations that were done around the same time that really unpacked what had happened so prosecutors had a lot of help. In West Virginia the guy kept slipping people he kept charging people that were one level below massey, and then they would roll on massey, the indictment that i was reading again this weekend, this is what i do for fun, i really need to get of life. It had all these notes quoted that someone had saved, a