The starting opinion of the conversation is to recognize our country has an epidemic of corporate crime, abuse, and violence from which we all suffer. Its evident in the financial crash that cost our country 22 million, and the bp blowup and oil spill, worse environmental disaster in the nations history, and numerous food safety crises and disasters that killed dozens rue teenly, and the new england Compounding Pharmacy scandal, and washingplace safety and Health Issues that arise at workplaces across the country daily, and much more. You have to step back and say we as country dont do a very good job of dealing with these problems, and one marker is they persist over long periods of time. So we have an issue how we set the rules for what is permissible for corporations to do. When we say, no, you cant imperil human life you cant 2013 the environment you cant rip us off. We dont do a good job of setting the rules. The rules we have, we have to have some kind of enforcement system, inspectors to look at factories, make sure that the rules are being followed. Superrors look at the banks to make sure theyre following the rules. And turns out we dont do very good job at funding those positions and, the positionses that are funded the inspectors dont do enough, offer because they dont get enough support from the top. When we inspectors and examiners find problems, the issue is, what da we do with companies that have broken the law . Criminal some civil law . What do we do . Thats where renas book focuses, both on that question and making the argument that we should focus especially on that third question, because we have done such a poor job on the first two. If we focus on criminal sanctions we could overcome the limits and our inability to impose proper standards or corporate behavior. This is both a chronic problem and its a very acute problem. Todays New York Times has a story on the front page open binss, laws hinder prosecutor in charging gm employees them story says from factory floor to the corporation suprasuite, employees saw the ignition defect and failed to disclose in the problem to the get. Yet, even now, the prosecutors are closing in on a criminal case against the automaker, their amendment to, which villages has loop high school. The prosecutors struggles the oversight of carmakers according to the experts. Thats a good jump off point for rein narks what is going to complain about the problem and criticize the version of the story and say why the prosecutors should step up. Let me tone it over to rena steinzor, the author of wow why not jail a professor at the university of Washington Law School and long time, and now recently president for the center for reform. I really appreciate everybody coming. I see a lot of familiar faces, and thats makes me happy. I thank specially to rob who is doing a fabulous job leading an essential organization in really difficult times, and to russell, who really deserves a subscription to his newsletter, which is anything but dry and boring. And finally, the katherine jones, who greeted you at the door. She is the person that sort of set up the nuts and bolts of this event, and she is cprs secret weapon. So im very grateful to her. I have a simple agenda for my 20 minutes, and that is to convince you that criminal prosecution of corporate managers and corporations themselves in the worst health, safety, and environmental cases, should be among our top priorities, as a nation and as a community. We should work in a concerted and relentless way to promote those kinds of prosecutions. On some level you all agree that bad guys should go to jail. But our community as a whole does not spend much time, largely because we have been fighting blazing fires all over town, focusing on the solution, and i think it is one that has a lot of popular appeal and the potential to break through the regular la door gridlock we find ourselves enmeshed in my firs argument is a matter of ethical politics or political ethics. Sounds pretty professorial. And as rob mentioned we have a longstanding neglect of White Collar Crime in this country. It is extraordinarily acute. We do manage on some level to fight everyday cases us of fraud and embezzlement, even at the state level. But at the federal level, there has been a shocking neglect of these kinds of cases. As we begin to talk about the critical issue of mass incarceration, which is the sort of outcome of all of the terrible things that have been happening in our cities, to people of color, i think its very important that we also raise the other side of it, which is that the Justice System some would say the inJustice System in this country, is very, very good at throwing poor people of color in jail, and very, very bad about policing rich Corporate Executives and managers who are so reckless and so grossly negligent that people die, in the workplace, as consumers, and we suffer irrevocable damage to the environment, and that im thinking of go old bp. That was a amazing scuff scoff law for ten years and was rapped on the knuckles many times until its final act was so sensational. And even now the company is saying were coming back, our stock price is back, not to worry. So neglect of White Collar Crime reflects a discrimination between two classes of people in a very unfair way, but it also flouts the ultimate goals of the criminal Justice System. Lockstanding belief that criminal prosecutions are good because they punish people, they deter crime, and nothing can deter crime more effectively than having the fbi or state police at your door to interview you as a potential target, and crime should reflect the values of our communities. So what do we know about the values of our community . As rob also mentioned, we have great indications that the American People are absolutely disgusted by the failure to prosecute the banks for what happened in 2008. Polling sponsored by the baumann foundation, which is one of the cosponsors of this event, gary bass is here. Many of you know him. Shows beyond a doubt that people think enforcement is too weak and it needs to be emphasized in appropriate cases, and there are other polls that show that people are very puzzled. They understand why street crime, violent street crime, has been a priority. I dont think they realize how many people are locked up for nonViolent Crimes. But they dont understand why bankers have seemingly walked free. Just a few days oak there was a story about the london whale, the guy that rigged the critical statement of banking Interest Rates and it said he was not going to be prosecuted. It was too complicated. They couldnt figure out what to do about it. Sends a message. So, its also true that the double standard is starting to make local news, and now ill tell you something that if you hadnt heard about it, ore going to be surprised. There were cases where drivers of defective cars that had fatal crashes one was a toyota and one was a gm car were themselves prosecuted for crimes. Prosecuted for reckless driving. And one guy got an eightyear jail term and served two years. Actually served two years, until toyota said, we think that car was having a sudden acceleration problem. So, we have a circumstance where large automakers have a fatal defect the cover over for year and then sign huge settlements with the government in the meantime, the average consumer who bought this car in completely good faith, has his conduct criminalized because the defective car causes an accident. Its really disgusting. Id like to move to more pragmatic arguments. I think this is something i say in the book may be controversial. I would really like to hear what you think about it. But my argument is that we need a completely different approach to the harm that is being caused because Government Agencies are on their back foot. There is rampant regulatory dysfunction because they are underfunded, grossly underfunded. They have laws that are out dated, and no chance of having them updated. As an example, you get a heavier penalty if you harass a wild bur roe burro than if you kill a worker. Laws are outdated. And finally the bureaucrats are Civil Servants are kicked upside the head every other minute by the endless drum beat of republicans, consecutives who are consistently on message and want to convince us that everybody in the government is incompetent, and mall mall live lent, even. The agencies dont feel luke they have a lot of backing epa cut its enforcement. Slashed it. One of the first things to go to sort of balance the budget and that is extremely important. If i were over there. Ha. That would be one of my things i would not touch until the very last minute. So, we have agencies that are single issue, epa is working on climate change, not on much else, unfortunately. Osha seems to have abandoned all rulemaking. The fda has been virtually defundedded on food safety. They dont have the now implement the new law there have been several stories about that, again just in the last couple of weeks. And nhtsa was absolutely looked as if it couldnt muster itself to even understand what was going on with some of these more sophisticated problems. It took actually plaintiffs lawyers thank you, plaintiff lawyers to discover that the ignition switch had actually been changed out in 2005, but gm had kept its secret so all the people who has cobalts were driving around with what they knew was a dangerous switch. So, bottom line is, too many companies, large and small, are gallupping across the tundra, causing grave damage without any fear of being caught or prosecuted, and this is a bad situation. Really something that we need a new approach to address and to really change, and if we go up to capitol hill, theres so many veteran lobbyists here i see going up to capitol hill and saying, will you please other give the agencies more momentum. You know what kind of reaction that gets. So, its not going to get better anytime soon, and the if we can find a way to advocate for really very sharp remedy, remedy that is appropriately harsh, in the right cases, i think it will have a lot of resonance with people who have a perception that the government is not protecting them, and that companies are only about the bottom line and really dont care about their customers. So, my third argument is that we can make big progress here because changes and reach has already started, and with that i rob mentioned some of these but i want to just point out for people who may not have followed it. No reason that you should. Im obsessed. Doesnt mean you have to be. The the whole point. One of the debt that there have been six notable prosecutions in five states that show at least that at least federal prosecutors are beginning to become far more aggressive on health and safety. Just to mention them, the bp company men who were in charge of the rig before the blowout, and made an absolutely puzzling, extraordinarily unusual and bad decision, about a test result that they got in, without consulting with any of the engineers on shore, have been charged and will go to trial in the fall. At the Peanut Corporation of america, which shipped out peanut paste with salmonella, killed nine, made hundreds sick, they had been convicted of felonies and will be sentenced on september 21st. New England Compounding Center has been charged with racketeering, the core offense is Second Degree murder of the 64 people who received these injections, got meningitis and died. Theres, by the way, 741 people who are still struggling with the aftermath of the disease. Its a situation you wouldnt wish on your worst enemy. The pharmacist, who of them have been charged with deliberately ignoring tests that showed that the clean rooms at the facility were infested with bacteria and fungus, who didnt do routine tests that are very clear in widely recognized industrywritten standards. This wasnt even something that the fda put out. Who were sending out medicine when they were only supposed to send it out to specific patients thats what compounding is you mix it for a specific patient they were sending it out to lists of names that included mickey mouse and jesus christ. And they will go to trial, its predicted, in april. Massey energy, which sponsored the Upper Big Branch mine collapse that killed 29 miners, the worth tragedy in decades, the ceo, don blankenship, to great cheering in West Virginia, despite the concern that the socalled war on coal is going to destroy all these jobs, people were calling every day, the u. S. Attorneys office, asking if he was going to indict blankenship. He finally did. If you read the indictment, youll be amazed at the kind of things the man was saying in writing, and is even more interesting that his Senior Executives kept all the notes. He was saying things like we dont have time to Pay Attention to safety. We need to dig coal. And was getting production reports every 30 minutes from the executive. Freedom industries, the people that ran the tank farm that had the leak that put the unpronounceable chemical that has never been tested, into the charleston water supply, again in West Virginia, have been charged and several of them have pled guilty. The jensen brothers, perhaps the most sympathetic because they had a really smart lawyer. Sold cantaloupe infest evidence with listeria. They met guilty but didnt serve any jail time. But still those two food prosecutions have convinced the industry, thank goodness, because were not implementing a food safety modernization act that if you hurt people, people get sick off the food that you send out, you can face criminal charges. Theres some common characteristics here. I just want to run through them quickly because my ultimate goal is to make these kinds of behaviors a component of the guilty mind you need to have to be prosecuted for a crime. Theyre very widespread you. See them when you look deeply into all of these incidents, and there have been thousands of pages of very detailed, very careful, very objective reports, have been written about each incident. You look into them, you can gather a few threads in your hands. First of all, everyone had. A ample washing they were doing something wrong because the regulators were ineffectually buzzing around them. Massey energy, the mine Upper Big Branch mine, was evacuated three times in the two weeks leading up the explosion that killed the 29 men. They had hundreds of violations pending for the exact practices that caused the explosion, and yet they persisted. They would not correct them. They appealed them and put them off. There is a relentless and irrational demand that people work harder and work faster. Texas city refinery, which was under george w. Bush, 15 people killed. The workers that were in charge of the unit that caused the explosion had been working 12hour shifts for 29 straight days. This is very common. Stovepipe management that has different responsibilities assigned. Im actually not sure if its deliberate but very effective. So nobody knows the whole picture. Closely related to that, a system that discourages reporting any bad news. So, at the mine, when people would say, the miners would say, the ventilation system isnt working, they would be told that they had kids, they needed to feed, and why dont they be quiet or they wouldnt be around the job much longer. The normalization of deviance is another, very common thread. This is when people see that systems are failing, that there are problems, that there are near misses, mounting up, and yet they rationalize it. They say these risks are really not that serious. We can accommodate this. As long as were aware of it, its going to be okay. And they talk themselves into this kind of group think that is blind to what the ramifications are. What could happen. So, one last one is elaborate paper tigers. Big corporations have reames of papers, map alls, directives, things put on the lunchroom bulletin board, and theres so much of it and it is ignored. Nobody is aware of it. Nobody reads it, and theres no system enforcing it. Its not done in a way that the average blue Collar Worker can understand. So, thats very ambitious, by the way, for me to say. If i were to if there other professors of criminal law here, they would be falling off their chairs at the idea that this kind of behavior should demonstrate mens rea, and that was guilty mind, and that is largely part of the problem, because there is this kind of refusal to say that when circumstances get worse and worse and worse and becomes clearer and clearer that something dangerous is going on the only people that are considered responsible are the ones standing there five minutes before the accident occurs. And there is plenty of room in the law, as i explain it, excessive length in the book, for making the argument when you create these circumstances, the chain of causation goes back weeks, months and that those poem are equally responsible if they are willfully blind and reckless and ignore what has happened and what the risks are. Now, i will also say and this is something that my colleagues would also many of them would laugh about is we dont need new laws. Were not going to get them. Thats sort of a problem. But we dont need them. Existing law has room for creative prosecutors, for daring prosecutors, to bring these kinds of cases, and be successful. We were talking before about prosecutors and why theyre afraid to bring creative cases, and part of the reason is that they absolutely hate to lose. If you talk to any of them, they will admit this at their first point out of the block. The other problem is that there isnt anybody yet really progression them in a concerted way to make charges, supporting them to do it. Sometimes a prosecutor see the lying about this kind of thing. One example is last week the new York Attorney general announced he was going to prosecute the owners of a papa johns chain that had stolen employees wages they had literally appropriated what they were supposed to be paying their line workers, made their taxes fraudulent to cover up what was going on, and he was going to bring criminal charges, and standing by his side was the head of the wage and Hour Division of the department of labor. And it was a wonderful example of the kind of partnership that can go on between state and local prosecutors who have even more flexible ways of approaching these problems and federal officials. Although i dont overlook the Justice Department at all. Theyre credit dollar the whole thing. Critical to the whole thing. Very important as we advocate that we push this is one of the reasons im so concern and interested in these managerial policies. These are not policies made at the line worker level. Making them central. Its not going to do anything if line workers are scapegoated and this has happened in industry after industry. Its a very serious problem. Its one of the things ive talked with my friends and organized labor about. Theyre directly concerned that scapegoating line workers doesnt do anything. The company is happy. It tries to fire. The all before they even get charged. Very happy to move on. When they were in a circumstance where they couldnt have done anything different because they didnt have the money or ability to avoid the accident, and finally, as to the example shows, think its really important that we work with state and local prosecutors on this, not just federal prosecutors. One of the little known facts in this this is something russell can talk about even more because he lived through it is that the First Corporate criminal case was actually brought against ford motor, in modern times, for the pinto, which you may remember had a gas tank in the back. When it was rearend at regular, relatively low speeds, it turned into a fireball and killed everybody inside. It and it was a county prosecutor who covered the case, county prosecutor in elk hart, indiana, who brought the charges. Unfortunately he lost, didnt have a great judge. Ford Motor Company paid 2 million for its defense. He had 20,000 available to him. But he is courageous, i still tip my hat to him whenever i think about it. So this wont be easy, and i dont want to pretended pretend that it will. I toyed briefly with the idea of telling you these stories. Just take my word for the fact that were you to manage to convince yourself to read these thousands of pages pages of very boring reports im not suggesting you should you would be really surprised by some of the thing that go on, and how obvious it should be that peoples lives are in danger. I want to say that we have already begun work in the worker safety area, thanks to the Public Welfare foundation. We actually are working on trying to make connections with state and local prosecutors and encourage criminal prosecutions. And one of the cases that were aware of and that we have been talking with the activists in new york, is a case, routine case, Construction Company sent a bunch of workers in without checking where the loadbearing walls are of the car dealership they want to demolish. The workers go in and start tearing it down. Of course, the loadbearing wall are the first thing they hammer at. The whole thing collapses and a man is killed. Thats the kind of these cases go from simple to complicated but a they really are astounding that people are put in these kinds of positions and i suggest to you the criminal law is the best answer. [applause] russell. Well, you dont have to read the thousands of pages that rena read because she read them all and wrote a great book about it. And so you can just buy the book. Thats one way to get the gist of what is happening. I guess the first thing i would say is prosecutors are human beings, too. And rena mentioned they hate to lose. They hate to bring a case to trial and lose, and the great thing about this book and a bunch of other books ill mention, that are being written new, this new wave of corporate crime activism, is that its going to give them space to act. So they renas book is like a road map for prosecutors. If i want to bring this case, how die do it . What are the precedents and all that. So, the first thing is that this book is a cornerstone for what i call a new Wave Movement to control corporate crime, and its in the context of a group of citizen academics, reporters and activists, who moving together, for the first time in probably 20 years. We were talking earlier about the books that were written when we started corporate crime reporter. It was john breakway, corporate crime in the pharmaceutical industry. Rob and i were writing column that were in books, one called corporate predators. There was a lot being written. Our first interview ever we do every week a question and answer interview was Rudy Giuliani. He was a republican, u. S. Attorney in new york, criminally prosecuting corporations and their executives for corporate crime as the launching pad to becoming mayor of new york. The prosecutor that rena mentioned in indiana who prosecuted afford Motor Company for homicide, republican, conservative. Approached by the families of the dead teenage girl and was moved, and there was a book an article written in mother jones that reprinted the memo where ford was saying if we recall this if we bring back the cars, how much will that cost . And then on the other side of the balance sheet, how much is a life worth . So, once the movement starts, its not about leftright or democratrepublican. Its about basic human values and justice. So, this is the cornerstone book of there are other great like the citizen scholars. Lets look at a couple of them, brandon garrett, university of virginia law school, wrote a book called too big to jail. Duke University Professor sam buhle coming out with a book called capital offenses. David almond at the university of michigan law school, federal prosecutor, head of the environmental crimes unit at the justice depth, writing about criminally prosecuting environmental crimes. You have now citizen reporters. Matt taibi, talk about american injustice, injustice in the aim of the wealth gap. An upcoming book about corporate crime, focusing on what rena was talking about, the failure or prosecutors the failure of prosecutorial will. Why no criminal prosecution of the big banks . Or their executives . And there are citizen activists, many of them in this room, that the Public Citizen is the hub for citizen activism against corporate crime and violence, who are joining with these academics and reporters, and youre starting to see starting to see the movement that you saw 20 years ago. And when this movement with this movement youre seeing the rise of what i call law and order liberals. Traditionally if you think law and order, you think conservative republican. Theyre more comfortable criminally prosecuting anyone. And thats why Rudy Giuliani was comfortable criminally prosecuting corporate crime because is was criminal prosecution first. Now youre seeing this sort of morphed be. Law and order liberals, and they would agree with president obama, as you know, first president to visit a federal prison this week they would agree with president obama that we shouldnt be throwing our prisons with filling our prisons with nonviolent drug offenders. Instead lets focus on Violent Crime. And i would argue, and rena argues, the Violent Crime we should focus on are the kinds of cases in her book. Massey energy, 29 dead. Peanut corporation of america. Nine dead. New england compounding. 48 dead. Lets focus on those Violent Crimes. Renas got a prosecutors mentality. She delves deeply into the facts and the cases and builds a case for corporate criminal prosecution. And when we started our publication, corporate crime, 40 years ago, there were prosecutors of renas mindset who took corporate time seriously. There was a District Attorney in los angeles, ira reiner, and his policy was anytime there was a death on the job in los angeles county, he would investigate it as a crime. Now, he didnt always prosecute it as a crime but he would investigate every death on the job as a crime. And he brought a lot of cases, homicides, Reckless Endangerment cases against companies and executives in los angeles county, for the deaths of workers. Now its starting to come back. In los angeles county. Theyre restarting the program, and so in october 2012 there was aup man named jose molina, the kind of facts youll see in the book. These are the kinds of facts youll see. Working at a bumble bee tuna processing plant. And im reading from a story. Entered a 35foot long oven as part of his job. The oven was used to sterilize cans of tuna. His coworkers were unaware he was inside the oven when they loaded 12,000 pounds of tune nark closedded the front door and started the oven. During the twohour sterilization process, the temperature in the oven rose to 270 degrees, and his burned remains were found by a coworker afterwards. The los angeles District Attorney investigated as a crime. And bumble bee and two others are facing criminal charges for willfully violating worker safety rules. Now, bumble bee will have to answer in criminal court. Now, thats one case. There are literally i think the one thing that upsets me and rena and rob probably the most is when you see these worker death cases and you see osha fines the company 20,000. Or 70,000. And why is that the case . Now, its true that the law is incredibly weak. But there are criminal prosecutions that can be brought. And david and michael, the head of osha, should head over i think rena told me head over to the Justice Department and sit down and say, whats going on here . Were criminally prosecuting people in upstate new york for mistreating cats. Maybe they should be criminally prosecuted. But these are people who are dying on the job, human beings. Another case that is just starting to come into the press is are these auto cases, the one ive been looking at is jeep cherokee. Similar to the pinto. Put the tank behind the rear axle. Someone accidentally rearends the car, maybe recklessly. The passengers inside the jeep survive. The crash. But the gas leaks, theres an explosion and theyre incinerated to death. The person who rearends the car ends up in jail. No criminal investigation of chrysler. This is a dirty deal, including the socalled recall where they said, lets put a trailer hitch on it, which didnt do anything. And this is youre going to be reading about this case in the press because theres a Grassroots Movement among people who witnessed theres one witness who witnessed an insis racing and got so upset she started a petition online, we need to criminally prosecute have a criminal investigation of the company and the executives. And theres like 10,000 signatures within a couple of months. And the families, where the families of the drivers who rearend the car, where their loved ones are in jail for what would have been a fender bender if the gas tank wasnt right there. This is the kind of double standard where taibi talk busy where we engage in wrongful activity, we end up in japan. They engage in activity that kills people and they get their bonuses. The reason i believe, why not jail, is the cornerstone of the new movement, is because its written as a road map for prosecutors. On the one hand. And for citizens to enlighten them and to generate this new movement for corporate crime. Now, a lot of other topics we can get into but theres one other. Rena talks in the book about deferred and nonprosecution agreements. In the Massey Energy case, the 29 coalminers who died at Upper Big Branch the prosecutor, even though he has proceeded against the executives and the chief executive, look at the company and entered into a nonprosecution agreement. Now, nonprosecution agreement is, hey, were not going prosecutor you, pay a fine. Some of these fines are huge. By the way, those fines should be going to Fund Corporate crime prosecutors, not to the treasury department. They should be going to fund the prosecution. But were not going prosecutor you. Thats one thing that is happening. Theyre saying, we dont think we can we dont want to try to win this case. So, well have a nice agreement with you, pay us some money and that will be it. The other is a deferred prosecution agreement, these things were initially intended, these deferred nonprosecution agreements, were initially intended by the Justice Department in the u. S. Attorneys manual to clear the jails of minor first offenders. Well charge with yeah, you broke and entered a high school to get an ipad. Its your first offense. Well charge you with theft but well defer the prosecution and if youre a good boy or girl, in a year well drop the charge. That was the intent of these things. Now these giant corporations are getting them. For these horrific and that switched about ten, 15 years ago. Used to be, plead guilty, pay the fine. Well put a probation officer in your company. Now its, i dont want to listen. The revolving door, most recently, couple horrific examples. A former attorney general and his head of the criminal division, eric holder and lanny brewer, spinning in and out of the Justice Department. Covington and bulger burling, they represent the big banks and the prosecutor declines to prosecute. Thats in the federal government. That key issue to figure out how we need to get to where we need to get to. Let me just add a few additional remarks and then open it up for conversation. I want to jump on a few opinions. First, let me thank the folks who put the event together, center for progressive reform and Catherine Jones and baumann foundation. We appreciate that. Were started talking about the world of corporate and White Collar Crimes. This is the point i want to make. Catch me making six you can start throwing tomatoes the first thing is theres a distinction between prosecuting individuals and prosecuting corporations. And i think theyre both super important. Renas back makes a case for doing both, but her focus is on the individual because theres something thats different that happens when you hold individuals accountable, and one of the problems we have in dealing with the issue of corporate crime and violence is diffuse responsibility and actually making some actual person not a corporation but an actual person accountable and responsible for what goes on. You have the to good after the corporation, too, to gift that, but theres a different piece about going after the individuals. So a big portion of her book is devoted to talking about going after individual executives, individual managers. Not the lower level people but the top people in decisionmaking roles. The people, not just the corporations. Thats the first thing i think comes out importantly in the book. The second, and rein in talk rena talked about this apart from the concern about losing cases, the other resistance ore maybe resistance in the law school, is worrying about the guilty mind. Mens rea, is it fear go after the ceo and hole him or her responsible for something that happens on the shop floor the same way you hold a street criminal responsible for their decision to break into a house and rough who up they found inside. The american who did it, they physically did it with their hands. They knew that way were doing. Theyre mind was guilty. You can see that. The manager, the executive, harder to at least abstractly to know, are they really responsible . What comes out in the book, even more than your comments about the themes about it but when you look at the actual cases, which she does in the book, and in detail, some of the abstraction goes away because you see the executive did not. No that they should have known or ought to have been responsible. They did know. They did push the policy that directly to the harm. So some of thereof problems of the goal mind, mens rea issue, goes away when you look at the actual, specific cases and thats why recent prosecutions have been moving forward. There is still a hard abstract level question to get into about where exactly you draw the line, and you can do a lot of interesting law school hypotheticals, how muchwhen is it too reprotest to go after the executive. But you can leave those difficult cases aside and you still have a lot of really easy cases. Turns out by and large the ceo or some high level person knew what was happening, pushed for it to happen, signed off on the policy and basically responsible by any normal sense of morality for what happened on the shop floor or in the car crash or in on the oil platform. So, that is one of the key issues. One of the really great things about the book it shows people have to deal with this at a conceptual level. But the cases arent so complicated. Let me say parenthetically, not to contradict russell this is a road map for prosecutors, because it is, but also its not this is the last its not a boring road map. Its a really good book to read. If you care about these issues and social justice, its a really good book to read. Thats not my third point. Thats a parenthetical. I go back now to the third point. The third point is talking about institutions and the issue of not just looking at the individual but looking at the corporation and the corporate structure. And i think one reason its so important to go after both the individuals and the corporations is that the corporations are so powerful and malleable. If you do one thing they let it go turned out if you hold top people responsible, if the corporation can get off, that constellation of people who make up the corporation will throw out sacrificial lamb, and you have to do bowl. Its important to go after the corporation as an institution, an entity, as well as the individual. We have had a tremendously difficult time doing that by way of the federal government in because of the problem russell talked about in some areas of the law theres been aggressive and appropriate criminal prosecution, like environmental crimes. But in other areas, especially and most acutely in financial crimes, they do a horrible job. In fact they have run away from criminal prosecutions altogether and replaced prosecutions with this idea of the deferred prosecution agreement or the nonprosecution agreement, which is basically a deal not to prosecute, not to criminally prosecute in exchange for a promise by the company, usually a bank but not always not to violate the law in the future, which is really not much of a rock miss because youre not supposed to violate the law in the future, even without the deal you made. But this has become the norm. Dozens of these instances happening every year now. Since around 2000. Much worse in the last five to seven years. I think maybe the worst example is massey, but another contender for the worst example is a case that involved hsbc, the bank. That company was involved in Money Laundering on a scale that sort of beyond your ability to get your head around. Hundreds of billions of dollars. And they were doing Money Laundering on behalf of largescale narcotraffickers and companies thats the United States considers to be enemies. I think we have come to expect now if you crash the Global Economy and throw millions of people out of work or people out of their homes, youre not going to be criminally prosecuted but if you were enabling narcotrafficking and assist countries that the United States calls enemies, you would be criminally prosecuted for that. But you would be wrong if you thought that bass youre not, at least if youre a large bank like hsbc. That was the example where the guy was in charm of criminal prosecutions at the time, lanny brewer, went back to covington and burl, says we cant go after them because were worried before the what will happen to the Global Economy if we criminally prosecute them. Thats literally too big to jail, or too big to prosecute from the prosecutor. This is a huge problem. Again, i said three points. That whats third one, conclude note, the good part of that story and its the sort of peeves that goes with this thing that rena and russell are talking about, individual prosecutions that hsbc might have been a tipping point, and lanny brewers comment and eric holders comments might have been a tipping point. The whole thing became unsustainable, and thanks to at the pressure from the people russell mentioned, its harder for the Justice Department to enter these deals. Were seeing the first actual prosecutions, where theres a deal a plea agreement but a plea agreement to criminal prosecution, and we saw that in the last few weeks with a big market manipulation case involving five large banks. Even then, theyre going through all kinds of contortions to avoid the appropriate sanctions that go with a guilty plea, but still, its a step forward that the Justice Department, i think, now feels a lot of reticence about entering into these agreements going forward. So we have a really serious problem. Actually become worse in terms of enforcement in the last 15 yours, but i think we are starting to see a cycling back in a different way, and we have an opportunity to push it so that there is some discipline on corporate misbehavior. I think the only thing i disagree with rena about is that we for sure have existing authority but we also do need we do need more laws. We make laws to make it easier with dont just want the heroic prosecutors. We want every prosecutor to figure out they ought to be doing that, and that involves mostly political will and will help them if they have more legal tools. For sure, uphill, but i think were moving finally in the right direction on those issues. Lets pause right there thats it from the panel, and wed love to open it up for conversation. If you would like to raise a question or make a brief comment, you should raise your hand and identify yourself and even have a microphone to talk into. Dont bonk him on the head. A great panel. I have all kinds of questions. Ill limit myself to two, which might turn into three but thats after robs lead. The point about the genesis of the epa because one of the initial sentencing reform, reforms corporate crime leniency tool, it mimics the criminal justice form or evokes the criminal justice form [inaudible] worried there will be some white collar criminals that are in there the Koch Brothers brothers and r republicans engaged on the issue and they seem to be talking only to the [inaudible] definitely talk about the criminalization on the hill, from conservatives, and [inaudible] the regulatory reach as well. Control and discretion is another question, special hi when it comes to epa. How do you i think the subject is maybe can you really have prosecutorial discretion or direction that is impossible to really count on, and then the last question is, epa and nta. Once you explain why the epa or nta any different than the theyre both settlement. What this criminal element to an npads the fact that responding to a criminal violation and other remedies to lock like criminal remedies. Ill i want to say, that wasnt even close to two questions. Explain the three questions. I can do the first one and then ill i actually am extremely concerned that white collar Legal Authority will be undermined in the overcriminallization legislation that we keep getting promised. On the hill these tase, if you have strange bed fellows its one of the only ways to get something done. So, in this particular case, we have the naacp, which is justifiably concerned about mandatory minimum sentences, and overcharging, and mass incarceration, and president obama has been incredibly progressive in his leadership on those concerns, but they are in a coalition with the Koch Brothers general counsel and with a slew of other people that the heritage foundation, leading theorists on the whole issue. Senator cornyn promised us there would be big legislation introduced to solve this problem, and james and i, who work very closely together, patrolling the hill, he does a lot of the patrolling. I mostly sits nag him about it. Were very want to get our hands on that right away because im feeling quite paranoid about it. I think they could try and redefine mens rea in a way that rob was hitting the nail on the head what should it be but it could be defined to mean i actually see it with my eyes, put my hands on the machinery and thats the only way im liable, which would make these cases very difficult to bring, and it will be a big bill, and it will be one of these Bipartisan Solutions that we all love so much, and people will be very anxious to get something done, since they basically dont do anything most of the time, and i think its a real serious danger. So, i emailed rob once every three days, whining and moaning and uplifting, encouraging. Yes, but worrying about this. Npa, bpa number three and number two. Number throw, what does what part of dpa and np as are criminal, the dpa theres a criminal charge. The companies is charged with a crime, usual lay statement of facts admitting to criminal wrongdoing. And then the prosecution is deferred over a period of time, usually two or throw three years, and if the company plays by the rules of the agreement, theres no criminal charge. If they dont, the criminal charge will kick in. And an npa is just pretty much very similar to the government actually gets its pound of flesh, so were not going to criminally prosecute you but we want you to pay a fine or a sum of money. On the second question, how do you prosecutorial discretion, well, the weight way this came about, when holder was there the first time before he swung into coveringtop and then swung back as attorney general her created the holder memo. And the enemy hoe was guidelines the memo was guidelines to prosecutors how to criminally prosecutor corporations and the factors you take into account, and the iteration of the holder memo, one of the factors was, you have to look at collateral consequences to the company. Take that into consideration when they come after you and me. I might not get a job. Ill do disgraced in the community. Take into consideration when you criminal prosecute the consequences. The way you would cabinet is to take u. S. Attorneys we are not going to do agreements with Big Companies anymore. If you get them with a statement of fact showing that they violated the criminal law, then either get a guilty plea or go to trial. I want to just say very quickly that you hear over and over that author anderson is the reason for this policy. I think i would say that 80 on the news reporting on these things, of course, the reason is anderson. Thats one thing. Thousands of clients were leaving one before the Justice Department indicted them. They were shredding paper, tons of paper for weeks until the fcc knocked on the door, please, wed like to see some evidence. They were indicted and convicted and they went to the court of appeals and the conviction was upheld and the Supreme Court said we dont like some wording in the charge to the jury. By then the company was long gone. But it isnt true to say that anderson went out of business only because it was criminally indicted. No one wanted to have anything to do with it. It had such a bad reputation. Couldnt resist. [inaudible conversations] hi, christopher. Im kind of wondering whether allegations is there a law with the department where discussions took place where channel communications, what ciend kind of interactions . They only referred general ri refers about two, three cases a year. They say the reason is because the law, which is weak, and we dont really disagree. I would love to have new loves. That would be fabulous. Im just trying to make the best osha. But theres other charges you can bring, lying to the government, destroying evidence, wire fraud, a wheel whole series of violations can be alleged. Were there cases where they settled out of the company . I believe there was chemical plant. It doesnt give right to a criminal. Then the Justice Department they couldnt. A violation doesnt trigger. Within a a number, they all seem to be violations of law of fraud and things like that, when do they prosecute someone, can you say an instance when someone violated epa and sanctioned for it . You didnt behave yourself so now were going to start a criminal case, rob has done the study on that. The answer is not all that often, right . They all they all have agreements. Ubs said they didnt criminally charge them but they said were going to prosecute you for the old thing because you violated the agreement. Thats the only one i know. What voted those agreements . I tell you what they say, they say you hire a corporate monitor and you set up this elaborate system where the cop rate monitor is watching over what the doing is doing, generally its a friend of the prosecutor, so one of the greatest advocates of this was chris christie, the governor of new jersey and he was hiring his friends in blue crip law firms to be monitors as part of one of these agreements and getting hauled up in a hearing and he ended walking out of the hearing. As the Campaign Goes on some of will come up again. Its not just a deferred agreement, its the terrible choice as rob explained. Its also in the em plementation there could be a lot of corruption. Just to say the National Resources which was the successor got one of these and when they sent their reports back, this is why im so critical, the only reason im really a great fan, when they sent the reports in, he wouldnt release them to the public. Very often theyre put under the monitor, but we cant see what theyve done because theyre not public, and thats yet another aspect of this that needs to be punished. Ting short answer to your question is little to no value in these deals. Yeah. One of the books that russell mentioned talks about the compliance efforts in much detail. Hes a little less harsh in general. He has the database. Basically the change is because top management said this was out of control and they changed. Its not because they entered into the deal. Is tougher on this one. For sure. Yeah. He actually pulled out the deferred prosecution. There was very little change as a result of it, and some of it he says that theres no further prosecution. He actually, you know, he also makes the point, which is very important that these kinds of agreements have exploded under obama. Theyre much more common than they were under george w. Bush even. So thats also em baa em lets do gary and then you and then were going to call it thank you all for putting up with the hot topics all day. The two questions actually three questions. [laughs] one, were under creative opportunities for advance prosecution when you have unsafe industries, refineries has put cities in danger, activities that are known and willful by these industries. You know, it would seem to be germane but you seem to suggest a line, just wondering what your thoughts are and any creative that prevent fatalities. Second is what role judges will play . When i think about the mcdonalds rule and a large reward, not because just the victim but the company alleged behavior. Things we recommend or need to be done with the way the judges well, great question. I dont know how many there were but they were great. Reckless homicide is what i was talking about. It doesnt require the intent that you come to work saying we are going to go hurt some workers, i would never argue that the Corporate Officers really do that. Its more of set of reckless ignoring, willful blindiness to circumstances. As for preventing things the criminal law is not for that, it punishes, closes the barn door after all the horses have run away, and you know, im not i do think that if there were more criminal prosecutions we might get a time we might get to the point where companies said, you know what, we need regulation, that would be great. But the refinery things where there are fires, people are very often badly injured if not killed. Im very glad that russell brought up the los angeles da who had been aggressive on these things. So that would be, you know, maiming, not just killing but maiming. Did i get everything . Judges, oh, yeah. We have to mention name of jay who is District Court judge in new york who has done more to fight deferred prosecution agreements than anybody. He just rejects them. Unfortunately he got reversed in the court of appeals. He just said im not going to accept this settlement, i dont understand why you are doing this. Do you want to okay. Hi, my name is katie, the coalition and we are currently in the presence of undertaking a project, of companies for crimes to human rights violations. Since we had that conversation we talked to a number of prosecutors on these cases as well. And so i was wondering if those things came up in your research and i have a second question as well that in the case you sited that youve seen success, what you think enabled those practices to take them forward . I understand why training would be a problem and its specially a problem when it comes to the police, so in worker death, sometimes the police are called, sometimes theyre not, were beginning to discover. Osha gets there a couple of days later. Its very important to preserve the crime scene, of course. And people may not realize, for example, that there should have been no way that office was closed with somebody inside. There should have been an alarm. Training is a very big issue. Protecting of witness, i dont, id have to think more about that. And what was your the second question was how would you think investigators and prosecutors were able to overcome the challenges they were just very highprofile, disturbing, there were a lot of investigations that were done around the same time that really unpacked what had happened so the prosecutors had a lot of help. In West Virginia the guy kept charging people that were one level. I mean, this the indictment which i was reading again this weekend, this is what i do for fun, really need to get a life, had all of these notice quoted that somebody had saved, had written notice from blankedship. I would just say that thats traditionally how prosecutors go after people. Right, of course. I think, you know, there was Something Else there. For generation people were dying in minds in West Virginia. Yeah. You mentioned individual prosecutors within the office who were driven by it. Actually i dont know him but steve ruby, i think his father was involved. I really thank you. I thank you for your patience and thank you for coming, and thanks rob and make sure you have it. Thank you all very much. [applause] every weekend book tv brings you 48 hours of nonfiction authors and books. We are a nation of laws, and i think its very important that we know who is in this country and why they are here. My perspective is that the right immigration policy is not going to only be good for security but economy. We believe that it was not possible, we couldnt do it. Even if we could do it, we believed that it would have been devastating to certain industries. We believe that the better approach thats talked about in this book with my coauthor is to find those people that are qualified and put them in some kind of legal status so that they can stay here, work in america, produce in america and i think by working here and being productive its going to enhance the economy and create our economy and create additional jobs for american citizens. Its something important for our economy and national security. Putting some kind of temporary legal status is the way to go. From there i have no problem with someone walking into a Government Office saying, i want a drivers license. We can talk in a few minutes whether or not does that mean that at some point they become american citizens, an one that can be dealt with in a respectful way and would be agreeable to most americans. You can watch this and other programs online at booktv. Org. Youre watching book tv, up next sheila, when government helped, successes and failure from the new deal. And now its my pleasure to introduce the authors of this session sheila collins, coeditors when government helped. This spoke