Crime and punishment under capitalism

August 5, 2010

What if there was a three strikes law for Corporate America's repeat offenders?

WHAT CONSTITUTES a crime? We are encouraged to see crime as something quite simple: Laws are made so that society can function smoothly. Steal or kill, and you are punished; disobey these laws, and you pay a price.

This superficial view fails to explain some glaring contradictions in the law and its application, or the social context in which crime is defined. As Rosa Luxemburg once wrote, bourgeois justice is "like a net, which allowed the voracious sharks to escape, while the little sardines were caught."

Laws and the violation of those laws (crime) reflect the interests of the dominant class--both what is defined as crime, and how the law, which gives the appearance of fairness, is applied in practice.

We know that murder is a crime, punishable in some states by death (state murder). But to murder large numbers of people in the service of one's country can get you a medal and a promotion. Bill Clinton imposed sanctions on Iraq that were responsible for the deaths of half a million Iraqi children. To date, no one has arrested him for this crime.

Kidnapping is a serious crime for which you can spend years in prison. But when the United States kidnaps people and sends them to foreign countries to be imprisoned and tortured--extraordinary rendition, as it is called--this is merely a useful "tool" in the "war on terror."

It is a crime to trespass on another's land, and a worse one to steal it. Yet the formation of the U.S. was based on the outright theft, by force and fraud, of the land of Native Americans and of Mexico.

We know that it is a crime punishable by death or life in prison to walk into a grocery store and gun down the owner. Killing someone while driving drunk is severely punished. But it is apparently not murder--and certainly not a crime punishable by death, let alone long prison sentences--when companies engage in practices that boost profitability at the expense of human life.

Last April, 29 workers died in an explosion at the Upper Big Branch Mine in West Virginia. The mine owner, Massey Energy, showed, according to a federal mine inspector, a reckless disregard for mine safety. Surviving workers at the nonunion mine described it as a ticking time bomb, where corners were cut and safety sacrificed for profit. Prior to the explosion, Massey was hit with over 1,300 safety violations at the Upper Big Branch Mine.

Yet it is highly unlikely that Massey CEO Don Blankenship will be prosecuted for reckless homicide or even manslaughter.

The last time a corporation was put on trial for homicide was in 1980, when three teenagers burned to death after their Ford Pinto exploded following a mild rear-end collision. Though it was conclusively established that the Pinto had a rear gas tank that had the potential to explode in such circumstances, Ford hired a top-notch attorney who was a personal friend of the judge, and won an acquittal.

In financial terms, corporate theft dwarfs what we call "street crime." Russell Mokhiber, editor of Corporate Crime Reporter, notes that burglary and robbery cost about $3.8 billion a year, according to the FBI, whereas health care fraud alone costs somewhere between $100 and $400 billion per year. Yet you will find many "street" burglars in prison, but very few of the wealthier, more respectable sort--even though they are by far the bigger criminals.

IN 1994, California voters approved a ballot proposition mandating a 25-year-to-life-in-prison sentences for being convicted of a third felony. Twenty-two other states followed suit. There are now thousands of people serving life sentences for things like stealing videos or food. In one notorious case, a homeless ex-convict was given a life sentence for attempting to break into a church kitchen, where he had been fed in the past, to get food.

Imagine if a three-strikes law was passed for corporate offenders who engage in criminal negligence regarding the safety of the environment and their employees?

For example, the British-based oil company BP has paid out $484 million in fines since 2005. In 2009, it paid almost $90 million to OSHA for negligence at a Texas oil refinery it owns, which led to the deaths of 15 workers in a refinery explosion. At the time of the explosion, the workers had been working 12-hour shifts for more than a month. Additionally, BP recently paid $3 million for 42 violations of workplace safety at a refinery in Ohio.

Surely, the death of 11 workers at Deepwater Horizon and the worst oil spill in history--caused, we now know, by BP's efforts to work quickly, cut corners and skimp on safety measures--counts as a third strike that should lead to life imprisonment for BP top executives.

Regulatory agencies such as the Minerals Management Services, which is supposed to oversee oil companies like BP, are complicit in the whole affair. According to James Baker, former head of the National Oceanic and Atmospheric Administration (NOAA) and a former Commerce Department undersecretary for oceans and atmosphere, "MMS is in bed with industry."

Quite literally. The American Prospect reports that "the MMS was a cesspool of drug use, sexual harassment, and personal, financial and sexual intermingling between the regulators and the regulated."

The process whereby government regulatory agencies become pawns of the industries they are set up to regulate now has a name--"regulatory capture." "Regulatory capture" should really be called "government capture." The last two presidential administrations and Congresses have enthusiastically supported offshore drilling to the neglect of well-documented safety concerns.

Oil companies have taken advantage of a friendly business climate that permits them to evade taxes while reaping large subsidies. For example, according to the New York Times, BP "used a tax break for the oil industry to write off 70 percent of the rent for Deepwater Horizon--a deduction of more than $225,000 a day since the lease began." Oil companies save $4 billion a year in tax breaks. They have also evaded paying billions in taxes by creating foreign tax havens.

Meanwhile, the moral panic whipped up by politicians and the media is reserved for low-level "street" crime, even though the 56,000 people who die every year from occupational diseases dwarfs the number of murders--16,000--each year. In cities across the country, police are found to be involved in systematic corruption, drug dealing, brutality and murder. But rarely do police officers find their way into a prison cell.

THE CRIME and drug hysteria not only disproportionately targets the poor and oppressed. It serves an important ideological function--of creating a sense of social solidarity, using racially charged stereotypes about Black men, immigrants and so on, that diverts attention away from the crimes of the powerful and acts as a brake on class solidarity.

The last three decades have witnessed a massive increase in incarceration, backed by a host of increasingly draconian laws, particularly related to drugs. Writes Phil Gasper, "As the 1960s progressed, 'law and order' became the rallying cry of right-wingers opposed to the civil rights, antiwar and student movements, as well as a convenient way to make coded appeals to racists, particularly in the South."

Richard Nixon--who later lost the presidency for authorizing an illegal break-in to spy on his Democratic rivals--ran his 1968 presidential campaign linking crime with the social movements sweeping the country. He wrote in an in Readers' Digest that America was "the most lawless and violent [nation] in the history of free peoples," blaming this on the "growing tolerance of lawlessness" by civil rights organizations and "the increasing public acceptance of civil disobedience."

This "tough on crime" (but not on corporate crime) environment has had disastrous effects on the most oppressed people in our society. Take the question of drugs.

Though Blacks and whites commit drug offenses at comparable rates, a 2009 Human Rights Watch report found that "in every year from 1980 to 2007, Blacks were arrested nationwide on drug charges at rates relative to population that were 2.8 to 5.5 times higher than white arrest rates." One in three drug arrestees in this period were Black, though they make up only 13 percent of the population in the United States.

Human Rights Watch concluded from its analysis of data from 2003 that "Blacks are 10.1 times more likely than whites to be sent to prison for drug offenses."

Today, politicians are creating a "moral panic" around immigration by linking crime, drugs and terrorism with the southern U.S. border. Amid claims that the border has an out-of-control and rising crime rate, Arizona Gov. Jan Brewer recently claimed, "Our law enforcement agencies have found bodies in the desert either buried or just lying out there that have been beheaded." There is not a grain of truth to her claim. Moreover, FBI statistics show that crime has been flat on the border for a decade.

Why don't companies that kill thousands get the same punishment as a man who kills one? What constitutes a crime in our society cannot contradict the nature of that society. A nation built on continental conquest, foreign expansion and corporate dominance cannot create a legal system that punishes murder impartially. If it did, every major president would have been in jail before he finished his first term.

The relative ease with which organized crime operates is also explained by the nature of capitalism. Organized crime is merely the production and sale of illegal goods and services for which there is a strong demand--by and large, it follows the same logic of accumulation as "legitimate" capitalist enterprises.

Then there's the record of the CIA and U.S. Army utilizing criminal gangs to further U.S. foreign policy interests in Europe, Vietnam, South and Central America, and elsewhere--a subject I have no time to develop here. So the economic and political system creates a fairly wide berth for illegal profiteering, even as it declares "wars" on drugs and crime.

Our political system, to quote one sociologist, is "little more than an arena for squabbles over the distribution of spoils between rival factions of the ruling class." So it isn't really surprising that the minnows are caught and most of the whales go free.

Companies may get a slap on the wrist--some executives may even get some prison time--to show that our justice system is "fair," without jeopardizing the essential functioning of capitalism, which by its nature involves playing with the lives of workers in the pursuit of financial gain. Seriously pursuing corporate crime would beg the question: Where does "legitimate business practice" end and "crime" begin?

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