Notes from the Left Coast

Drummond Pike’s Blog

Have you ever met Ms. American Express? Or, Mr. Exxon? No, neither have I, but the odd thing is that under the law, they are, roughly speaking, the same as any normal sentient person. This is the result not of a Supreme Court decision, but rather a Supreme Court Reporter’s description of a decided case – a statement without precedential value – that has been disputed ever since. That the reporter was a retired railroad executive and the plaintiffs were rail companies in the late 1800’s, seems to have been left in the dust of history. The rail companies, you see, were trying to reinterpret the 14th Amendment that was passed shortly after the end of the Civil War; its purpose was to address the history of slavery in the south by precluding a state’s right to pass any law that “abridge[d] the privileges or immunities of citizens of the United States…” In short, if held to be a legal “person,” a corporation could argue that a state couldn’t individually regulate its affairs; only the federal government could. In any event, by chicanery or innocent error, Santa Clara County v. Southern Pacific Railroad became the means that turned corporations into legal “people.”

There is more than a modicum of irony in this, since many of the rail corporations that benefitted from the 1886 decision, and they did so handsomely, also readily embraced the Jim Crow laws of the post Civil War period that continued the subjugation of most ex-slaves and their progeny for a hundred years. I doubt they ever made the connection between their economic advantage and the use of the Amendment intended to ensure freedoms to those freed by the passage of the 13th Amendment banning slavery.

What inspired this line of thought? I read in today’s NY Times that over recent years, the US Justice department has been signing dozens of “deferred prosecution agreements.” These have them paying fines, opening themselves to ‘outside monitors,’ and otherwise not admitting responsibility. Many of these agreements are secret, to boot, so we don’t even know about them. Now, that’s what I call having your cake and eating it, too, because I don’t think real people get anywhere near that kind of a break. No, we seem perfectly content to lock real people up or – at the very least – have them plead guilty to a lesser charge. Criminal cases don’t have “settlement agreement” options…unless you are a corporate “legal person.”

Think of all the money we could save if we allowed people indicted for crimes to have “deferred prosecution agreements.” None of those Enron guys would have gone to jail – they’d just have bought themselves out of the jam just like Monsanto evidently did. In the Times article, they described Monsanto’s deed: knowingly bribing an Indonesian official in return for looser regulations for those using their modified crop strains. The company knew about and approved the bribe (not some maverick executive, to be clear), but they never faced criminal charges of the kind that drove Authur Anderson out of business. Ah, the new era of “free market capitalism” seems to have been given a new meaning for “free.”

Evidently the current administration’s perspective is that free market corporations ought to have a permanent “get out of jail free” card. Any idea where I can get one of those?

Oh, one more thing. Remember John Ashcroft, our former Attorney General who oversaw the Justice Department? Well his firm just got a $50 million deal to monitor a “deferred prosecution agreement” between Justice and a medical services company. Sweet, huh? Just kinda makes one want to go into public service….and then jump into the greenback-lined “post-prosecutorial era.”