Capital Offenses

May 23, 2016
Why isn’t half of Wall Street in jail? Or at least in court? Several years after the Great Recession, that is a question Main Street America would still like answered. Buell, a law professor at Duke University and former Enron prosecutor, has an answer, but probably not the one people want. In short: it’s complicated. In this comprehensive examination of white-collar criminal law, Buell cogently explains the difficulties inherent in corporate criminal prosecutions. First, corporations aren’t people, so they can’t be incarcerated. (Generally, they can only be embarrassed and fined.) Second, the misdoings of corporations, even when deadly—as with General Motors’s faulty ignition switch or the explosion at BP’s Deepwater Horizon oil rig—are seldom attributable to one person. Instead, they generally arise from systemic flaws in corporate culture or procedure. Aside from these difficulties, the laws governing corporate malfeasance are deliberately vague and often require that prosecutors prove malicious intent, making convictions difficult. Buell also explains why corporations, as engines of commerce and promoters of economic welfare, are given leniency and latitude that would never be offered to human beings. Without ever coming across as specious or barristerial, he has crafted a thoughtful and thought-provoking examination of crime on Wall Street vs. crime on Main Street.

May 15, 2016
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.

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June 1, 2016

Buell (Bernard M. Fishman Professor of Law, Duke Univ.) provides a career prosecutor's legal justification for corporate criminal prosecutions, conceding that corporate crimes turn on "fine and difficult-to-specify lines." In clear language and using timely examples, he proceeds through types of crimes, starting with fraud and "loopholes." The most important point, according to Buell, is proving state of mind. After addressing complaints about prosecuting these cases, he concludes, "corporate criminal liability is here to stay." He provides pro-prosecution commentary on the Enron, WorldCom, and Arthur Andersen cases and claims that most white-collar defendants are guilty. The book ends with a call to make corporations by law responsible to the public. For a more trenchant opposing view, compare this book to defense attorney Harvey A. Silverglate's Three Felonies a Day, which blasts federal use of fuzzy criminal laws. Silverglate addresses many of the same cases as Buell and argues that "when the feds appear on the scene," no one is safe. Taken together, the texts show both sides of the coin. Buell's text, as with an indictment, is persuasive but not the final word on the subject. VERDICT Recommended for law and public policy readers.--Harry Charles, St. Louis

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