Prosecutors often portray street criminals as evil people preying on innocent victims.
Iowa Law School
But rarely does evil enter into a prosecutors’ vocabulary when portraying corporate crime.
Instead prosecutors use sanitized language devoid of outrage, disgust, or urgency.
In their telling, corporate crime is an economic byproduct of broken information channels, deficient compliance protocols, and misaligned incentives. Victims become casualties.
Why?
Iowa Law Professor Mihailis Diamantis explores this question in a new paper titled – The Monster Within: Representing Corporate Evil. The paper will be published in a chapter of a book coming out next year – Evil Corporations edited by Penny Crofts.
“A rhetoric of corporate evil is possible,” Diamantis writes. “Prosecutors need only visit the theater. Horror films solved the catch-22 of morally ambiguous evil decades ago.”
Diamantis says that prosecutors know full-well how to foment moral disgust toward human villains.
But prosecutors face some significant hurdles in portraying corporations as evil.
Corporate criminals are constituted differently than individual criminals.
They are commercial enterprises that lack the familiar hallmarks of moral agency.
The crimes they commit are often engineered by a small group of rogue insiders.
And, even as corporations harm us, we owe our livelihoods and consumer comforts to them.
“For each of those attributes, I point to three standards of horror cinema where the villains of those genres also exhibit those exact same traits,” Diamantis told Corporate Crime Reporter in an interview last week.
“Corporations are not conscious actors, but then again a lot of the monsters that we see in horror films are not conscious actors – zombies, aliens who have subhuman intelligence, the Slime. And yet horror directors manage to present even these entities as presenting tangible urgent and a moralized threat not only to the people in the film, but a threat that we feel as viewers of the film.”
“Then you have the rogue agent problem. It is often individuals within corporations that seem to co-opt the entire system to their evil ends. You can look at the whole section of horror movies devoted to demonic possession. There is some evil that takes over and co-opts an innocent victim and drives them to do evil things.”
“The final group is where you have both good and bad attributes for the corporation – providing services and good and causing harm. This is reflected in horror stories – from Dr. Jekyll and Mr. Hyde to Silence of the Lambs. In that film, Hannibal Lecter was a psychopathic killer, but was also the key to solving the serial killer investigation.”
“And then you have werewolves, who also have two faces – one good and gentle and the other terrifying.”
“Horror directors found tools to represent all of these creatures in ways that convey a sense of disgust and repulsion that is not just superficial. It hits us in the same place where we are making moral judgments. There are some narrative lessons there that prosecutors could draw on to help them do a better job when talking about corporate evil.”
Is Diamantis a fan of horror films?
“I am a fan of horror films. But it’s hard to find people to watch them with me.”
How many horror films have you watched? “Hundreds.”
Have you written about this, other than this paper?
“No, this is my first. I had to do a lot of background reading.”
I know people who are freaked out by zombies. But at the same time, they are not freaked out by corporate crime.
“It’s a matter of framing and presentation. You can present a blob from outer space in a way that makes it a goofy, campy scenario. Or you can present it in a way that makes it feel like a serious threat to the people on the screen and yourself.”
“There is this puzzle in horror. How can something you know doesn’t exist – the zombies, for example – how is it that directors are able to make people feel frightened of zombies? It’s a trick that they manage to pull.”
“There are some influential theorists in horror who feel that the way directors do it is that they first get you to empathize with the individuals on the screen. And then they use the individuals on the screen to model the kind of reaction that they want from the audience in the theater to have. It is through sympathy and example setting that horror directors manage to get us to feel the same kind of fear they are portraying the victims on the screen are having.”
“Why don’t we feel that toward corporate horror? Because there is nobody who is showing us how we should be feeling toward it. Prosecutors aren’t doing it. They are not talking about it in the charged way that they should be talking about it.”
“Victims don’t have a platform to talk about it – the victims that know they have been harmed, like the Boeing victims. They don’t have the access to the audience that a director has.”
“We just don’t have anybody displaying the urgency of corporate crime for us. I put it at the feet of the people best positioned to do it for us.”
“Primarily, my work has been about prosecutors. They are our voice. They are our representation for what corporate crime means. If they don’t tell us it means something horrific and evil, then we are not going to feel it either. And the media also has a role to play.”
If the prosecutors had a different mindset, in Boeing for example, there wouldn’t have been a deferred prosecution agreement with the company. They would have proceeded to trial or forced a criminal plea. They would have charged the top executives.
The sanitized language you speak about reflects the sanitized prosecution.
“This perspective on corporate crime is not just about respecting victims and being true to the threat that corporate crime represents,” Diamantis said. “It also impacts decisions that prosecutors make. If they thought that some corporate act was truly insidious, they would be much more hesitant to enter into a deferred prosecution agreement or even a plea deal.”
“It would be important to them to take some of these cases to trial, to give victims the opportunity to tell the public what it was that they experienced and to allow the public a window into what happened so that we can have a final moment where we all see just how abominable the conduct was.”
“The word evil isn’t part of the academic vocabulary when we talk about corporate crime. Rather surprisingly, it’s not part of the prosecutors’ vocabulary either. We just don’t see moralized language. This is a point that Bill Laufer makes. There is not a tone of indignation or retributive ire from prosecutors toward the corporate criminals that they are investigating. Prosecutors are really good at finding and channeling that language when there are individuals who have abused the system or abused individuals.”
“But when they talk about corporate crime, they switch to more sterile and polished vocabulary that emphasizes systems that have led to misconduct, or rogue individuals within corporations who were inadequately monitored.”
“It’s two ways of describing the same underlying features of the world – either focusing on the economic explanations that produced it or focusing on impact and moral significance. And prosecutors routinely opt for the former.”
“One of the reasons is strategic. Prosecutors are in negotiations with corporations to try and enter into some kind of deferred prosecution or non prosecution agreement. This is the corporate compliance game that Bill Laufer talks about. If you are negotiating toward a resolution, you can’t antagonize your counterpart too much.”
It’s not just they are in negotiations with the corporations and don’t want to offend them. But eventually these prosecutors are going to be in negotiations with the corporate defense lawyers to possibly get a job with those law firms. This is the revolving door problem where a large number of these prosecutors at the Justice Department and the SEC end up working at these corporate criminal defense law firms. If you start using language of evil and horror in portraying corporations, it probably undermines your career prospects.
“There is some mixed evidence on the effect of the revolving door and prosecutors’ decisions. Those studies don’t extend to the rhetoric that prosecutors use to describe corporate crime. There are probably barriers to hiring someone who has called you a monster in a way that there aren’t barriers to someone who while doing their job took a tough line against the company.”
Even in cases of egregious corporate misbehavior, like the Boeing corporate crime case that resulted in more than 340 dead, they were not able to summon moral vocabulary. There are not even outliers where you can find exceptions to your rule.
“I have looked for exceptions. And I couldn’t find them. We looked at ten years of prosecutions of large corporations. And the goal of the project was to see what we could learn about the victims of corporate crime from prosecutors. We were hoping to produce some positive results about the victims. And the result was we failed to find much of anything. And that’s because prosecutors don’t talk about the victims of corporate crime.”
“It’s not just that they don’t use the rhetoric of evil. It’s a disregard of victims’ rights. And I do focus on the Boeing case. It’s like an erasure of victims. That was my take away from this empirical project. The basic rights to having a say over the process are being erased by prosecutors. We see it in Boeing. In Boeing, we have identifiable victims who suffered an egregious harm. But so many cases of corporate misconduct are dispersed across a huge group of sometimes unidentifiable victims.”
“Even in those cases, prosecutors need to put victims in the forefront.”
[For the complete q/a format Interview with Mihailis Diamantis, see 37 Corporate Crime Reporter 38(13), Monday October 5, 2023, print edition only.]