Maximal Accountability with Minimally Sufficient Punishment.

• Author: Braithwaite, John

1. FOLLOWING FISSE'S FOOTSTEPS 912 II. TRANSFORMING THE CRIMINAL INJUSTICE SYSTEM INTO A JUSTICE SYSTEM 914 III. THE ACCOUNTABILITY AND MINIMAL SUFFICIENCY PRINCIPLES 916 IV. CONSIDER TAX OFFENSES 919 V. AN INCREMENTALIST METHOD FOR MINIMALLY SUFFICIENT PUNISHMENT 919 VI. MINIMAL SUFFICIENCY THAT BECOMES A MARKET IN LEMONS 922 VII. TOO BIG TO FAIL; TOO BIG TO NAIL? 926 VIII. FROM CORPORATE TO ORGANIZATIONAL ACCOUNTABILITY AS LEVERS 932 IX. FOR A MACROCRIMINOLOGY OF ORGANIZATIONAL ACCOUNTABILITY 934 I. FOLLOWING FISSE'S FOOTSTEPS

   Commenting on a draft of this Article, Brent Fisse generously noted that he and I are jointly responsible for the Accountability Model! He did lead on key ideas; there are reasons he was the senior author of key publications. The accountability in this work is not necessarily accountability through criminal punishment. Punishment limited to national justice systems cannot accomplish accountability on its own in a world where the most culpable upstream/downstream corporations might be offshore. (3) An intractable problem for small economies, it is occasionally true for the United States (consider Deepwater Horizon, pollution from ships in international waters, ozone, space crimes, cyberespionage). Deferred prosecutions can be reformed to lever transnational compliance reform and heal harms to offshore victims. Leverage from national regulatory threats can help secure transnational prevention. Some damaging U.S. corporate crimes might have been prevented by national corporate crime enforcement with a cosmopolitan preventive imagination more akin to the imagination of epidemiologists preventing Ebola or COVID-19. (4)

   Various parts of this Article build on Fisse's foundations by moving to Macrocriminology and Freedom. (5) That book conceives enforced self-incapacitation as a neglected doctrine and provides the reader with empirical evidence suggesting that enforced self-incapacitation has at least as much promise as deterrence, rehabilitation, or retribution. No more than curated illustrations are proffered for the power of weaving many doctrines together with enforced self-incapacitation, combined with a theoretically-informed view on the kind of systematic empirical research needed. How might enforced self-incapacitation have helped prevent criminal cultures that brought about the Deepwater Horizon catastrophe and the Arthur Andersen contribution to Enron alongside other 2001 crashes? (6) One fair, insightful Fisse criticism of Macrocriminology and Freedom is that the controls it describes may be self-enabling for prevention more than self-incapacitating.

   The second principle advanced is minimal sufficiency of punishment for criminal law to be effective in preventing crime. Punishment as a "last resort" has currency in jurisprudence. (7) Under the minimal sufficiency principle, punishment of crimes of the powerless must be reduced to approach minimal sufficiency. (8) Minimally sufficient punishment is that level of punishment that accomplishes sufficient prevention to maximize freedom as non-domination. (9) Macrocriminology and Freedom argues for increasing punishment of crimes of the powerful to attain minimal sufficiency, (10) together with improved detection and investment in accountability for all responsible. Other symposium essays point out that when detection is rare for companies averaging more than two offenses a week in financial corporations, (11) and expected punishment is low compared to expected benefits, deterrence is close to zero--i.e., minimally insufficient. (12)

   Macrocriminology and Freedom acknowledges the contributions of many co-authors and forebears on how freedom promotes crime prevention and crime prevention promotes freedom. Brent Fisse was one. This Article focuses specifically on Fisse, though not to the total neglect of others. Fisse was my earliest, most influential corporate crime mentor, a man who thoroughly shaped my thinking about organizational responsibility. This includes his thought on reactive fault--a doctrine of fault for failing to react responsibly to detected crime within an organization, assessed by good faith and good deeds to right the wrongs. (13) A Fisse-inspired contribution does not mean he agrees with everything written here. (14)

   Increased corporate criminal prosecutions can help improve detection and deliver more accountability for all who are responsible. However, putting all scarce regulatory resources into criminal cases would, of course, defeat those outcomes. Deterrence and incapacitation are important parts of reducing corporate crime, but strengthening and diversifying the regulatory mix in the tools policymakers use to control crime is even more important. If criminal law jurisprudence is to become an evidence-based tradition, it must come to terms with the current state of the evidence. There is little evidence demonstrating the efficacy of deterrent corporate punishment. There is much stronger data on the efficacy of detection of crime and deployment of a mix of regulatory strategies in response to detection--of which punishment is one important part of the mix. (15)

2. TRANSFORMING THE CRIMINAL INJUSTICE SYSTEM INTO A JUSTICE SYSTEM

   It is wrong to view criminal law as a failed institution in the sweep of history from the ancient world through the Middle Ages to modernity. This is because the historical evidence suggests that criminal and tort law evolved as more principled, less violent responses to blood feuds. Formal law contributed greatly to the long-run decline in violence by providing a substitute for tyrannies of informal justice. (16)

   But criminal law fails when it operates primarily as an institution of punishment, mainly punishment of the poor. As such, it fails to stimulate deep thought on structural realities of injustice and, on many occasions, facilitates those injustices. For example, criminal law came to serve ruling class interests by allowing impunity for theft of First Nations' land and then permitting an enslaved population imported from Africa to work the stolen land. It legitimated arbitrary use of the lash by white slave owners. Then the white man's law allowed them to devastate the land they stole: hunting all the buffalo, using the trees for lumber, putrefying the rivers, and overfishing. Finally, their laws of impunity left unpunished mega-fires caused by burning coal, gas, and oil--ultimately bringing ecosystems past their tipping points. Instead of effectively criminalizing these things, the law criminalized First Nations braves who defended their buffalo and land.

   The frontier wars of the United States and Australia, where institutions of criminal justice routinely failed to accord equal justice to whites and non-whites, found their modern counterparts in the Afghanistan war, Abu Ghraib, and Guantanamo Bay. Today, after Democratic candidates promised to close Guantanamo during three winning elections, the United States flouts the Geneva Conventions and ancient common law traditions of Habeas Corpus. No mark of failure for the character of western justice could be more total than the evidence that the Islamic State in Iraq and Syria was founded by an inmate of a prison run by the U.S. government and its contractors (Camp Bucca). Abu Omar al-Baghdadi had been neither a combatant (and therefore not a POW) nor tried for any specific criminal offense. (17) All his initial recruitment to form Islamic State was conducted among inmates inside Camp Bucca, drawing inspiration from arbitrary imprisonment, torture, and willful disrespect for the Qur'an that--by then--were publicized facts of criminalized regimes inside Guantanamo Bay and Abu Ghraib. (18)

   This way of thinking about the criminal justice system resonated with Occupy movement slogans: that the system served the "1 percent" who corruptly extract most societal wealth. It resonated even more so in Australia, where corporate criminals enjoy impunity while a majority of young First Nations citizens experience arrests and a rate of imprisonment and death in custody worse than for African Americans. Contact with the criminal legal system is not just another minor part of the oppression inflicted on First Nations Australians; it is the heartland of Australian oppression. The justice system makes it difficult for young Aboriginal survivors of the system to avoid homelessness, hold a job, or even get one in the first place. (19)

   This Article argues for corporate criminal responsibility as central to any program aiming to transform criminal law from being a weapon of injustice. Maximizing detection of criminal offenses committed in the name of the system and demanding responsibility for wrongdoing remains important in the conduct of institutions like the corporatized prisons without trials that punish those on the wrong side of the war on terror. However, maximizing consistent punishment of crime and pursuing proportionate punishment of all crimes are prescriptions for expanding extant criminal law as an enemy of freedom. This is because the system is designed to be ruthless in pursuing the crimes of 'The Truly Disadvantaged' (20) and simultaneously designed to be overwhelmed by impunity for the powerful.

   Why dismiss consistent punishment in favor of an accountability principle in criminal law that holds accountable all those who should be accountable? Mostly, this means non-punitive

   and non-criminal forms of accountability. This Article suggests a minimal sufficiency principle of punishment. Maximum justice is a better aim than maximum criminal prosecutions and requires minimal sufficiency of criminalization. Minimal sufficiency means a release of 90% of incarcerated offenders even in societies with the lowest imprisonment rates. (21) While minimal sufficiency requires reduced punishment of the poor, it demands more convictions of the powerful. Extant criminal law institutions inefficiently and unjustly over-punish the poor and...