CAPITAL OFFENSES

The federal prosecutor for the massive Enron investigation examines why corporations and their executives rarely face criminal charges, no matter how widespread their hurtful conduct.

Buell (Law/Duke Univ.), who seeks to explain the system of law to nonlawyers, opens his extended essay with the example of a young man dying in the crash of an automobile driven by his fiancee. A Texas prosecutor charged her with manslaughter after learning she had ingested medication the previous night and perhaps should not have been driving. Beset with emotional agony, the driver pled guilty. Ten years later, everybody involved in the apparent crime learned that the fatal crash had been caused by General Motors, which had equipped the car with a defective mechanical starter. Many people would make the conclusion that GM killed the front-seat passenger. It’s a fair enough conclusion, writes Buell, but where does it lead? Can an inanimate corporation be imprisoned for homicide or other criminal offenses? If prosecutors want to build a criminal case against any employee, how would it be possible to prove culpability beyond a reasonable doubt? Readers who believe corporations and their employees should be charged with criminal conduct will find Buell's teaching instructive—and frustrating—on nearly every page. He offers numerous examples of how the traditions and procedures of the American court system lead to the inexorable conclusion that corporate managers will almost never end up in prison. Almost every case of corporate wrongdoing, including by financial institutions in the housing market crash of 2007 and 2008, turns out to be hopelessly vexing if a prosecutor wants to imprison a human being. Buell considers changes in the laws that Congress could approve, but he worries that proposed changes would result in unfair proceedings, thus compromising the rule of law.

A book that will challenge conventional wisdom among readers who intuitively believe that corporations often game the system.