A district attorney’s job is to ascertain who has committed a crime and then prosecute the sucker. Unless, of course, that sucker happens to be a giant corporation and it’s willing to throw some cash into the middle of negotiations, which then turns the DA into a politician with a constituency. Suddenly, all is forgiven, for a price.
When a worker died under the heels of anxious shoppers at a Long Island Walmart, a criminal investigation ensued. Was Walmart criminally liable for its failure to have an adequate security plan in effect to protect the life of Jdimytai Damour, a temporary employee who had the misfortune of being between the shoppers and cheap goods?
From Newsday :
Mega-retailer Wal-Mart will avoid criminal prosecution for its role in the fatal post- Thanksgiving Day stampede at its Valley Stream store by agreeing to overhaul its statewide safety plan, paying out $400,000 to victims of the melee and donating $1.5 million to community programs, Nassau District Attorney Kathleen Rice said Wednesday.
“No prosecution could have achieved what we have been able to do with this agreement,” Rice said. “Rather than bringing the world’s largest retailer to court and imposing a small fine against them, I felt it was important to require significant safety changes that will affect the whole state.”
Rice “felt”. Rice is the elected district attorney, not the elected “feeler”. We haven’t had one of those since Bill Clinton. Worse still, Rice explained (and when there’s a camera on or a reporter around, Rice is always available to explain):
Rice said the agreement is “unprecedented” and stressed that it is rare that a local prosecutor’s office could win major concessions from the nation’s largest retailer.
Rare indeed. Not because a local prosecutor can’t use the power of prosecution to exact cash in exchange for prosecution, but because most local prosecutors understand the purpose of their office.
It’s not that I’m against this deal, as a criminal defense lawyer, but that I’m jealous. Why can’t all targets (get the pun?) buy their way out of prosecution for a cash contribution? Bernie Madoff is likely thinking the same thing. If Rice truly wanted to benefit her “constituents”, she should post a fee schedule on the courthouse door. I wonder how much she would charge to get out of a murder? According to this story, the price appears to be $1.9 million. That’s quite a deal, really. Plus, there are always manager’s specials for those who are of the egalitarian point of view.
Frankly, I don’t know that Walmart holds any criminal responsibility for the animalistic actions of shoppers. I don’t know that anyone, or any corporation, can anticipate relatively normal people (assuming that Long Island shoppers are relatively normal) stampeding and trampling a human being. Personally, it’s unlikely that a Thanksgiving Day sale would be worth my killing someone, but that’s just me.
But Rice doesn’t argue that this deal was acceptable because liability was questionable. That would have been a very different position. She lauds herself for doing the politician’s job of getting cash from a potential criminal defendant in exchange for not prosecuting. In Nassau County, cash is king.
The only question now is when Kathleen Rice plans to run a two-for-one sale. Now that’s a deal.
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Oh, but Ms. Rice surely IS a politician. She was elected no?
Indeed, she was elected. As are judges here. But they are elected to particular offices, not as generic advocates for the people, to do as they please and pander to the public’s sensibilities for their personal political gain.
Crime, punishment and the Wal-Mart trampling case
Scott Greenfield has some thoughts on the deal cut by the Nassau D.A., and the incentives that can arise when prosecutors’ offices become revenue/appropriations centers. Don’t miss the last paragraph….
Great post. Agree with most except your assertion that we haven’t had an elected “feeler” since Bill Clinton. You don’t think President Obama is the same?
Having never defended a corporate client in a criminal prosecution, I’m a little mystified about what could come out of such a prosecution other than cash and restitution (assuming the officers of the corporation aren’t also being prosecuted). You obviously can’t send the corp. to prison. I suppose there’s probation, but what other than cash could be the consequence of violating probation? Is the idea that the corp. will be punished by the stigma of a criminal conviction?
Since a corp. apart from its officers could not seem to have a criminal intent, the only reason I can see for having such criminal prosecutions is to allow the state to bring them rather than relying on privately-brought civil suits (which may or not be economical, though I would think in most cases and in this case they would be economical). I’m sure I’m missing something.
BTW, I see that you’ve modified your feed so that RSS readers only capture the first part of your posts. Good move. It’s only slightly more inconvenient for your non-USLaw.com fans. Plus, I would think it would give you the benefit of knowing who’s reading your posts through RSS feeds, since they have to click to your site to read the rest of the post rather than read the whole thing in the reader.
On the one hand, you’re quite right that corporations don’t go to prison. On the other hand, corporations don’t make decisions either. Somewhere, lurking deep within the corporation, is a person who said “do it” or “don’t”. Whether that person bears responsibility is another matter, but “legal entities” shouldn’t be confused with decision-making and individual responsibility.
But in this case, the bigger issue is who gets to decide how much money buys off the crime, where the money goes, whether the public trust has been vindicated and society any better off from a criminal justice perspective (as opposed to a financial perspective). What of the deterant value? The decisions belong to the courts, not the prosecutor.
Are you kidding? Obama’s a piker compared to Clinton. “I feel your pain…”
According to the DA’s news release:
So what’s the nexus? Why not senior citizens? Or abandoned pets?
Absolutely. Who is Kathleen Rice to decide where this money should go, what the priorities should be, who should get and who should do without. She a DA, not Santa Claus with public money, and if she’s getting it from Walmart to buy off a prosecution, it is most assuredly public money.
welly, why not seniors and pets? they shop walmart too, in person or (in the case of pets) by proxy.
while i’m generally not a fan of bribery, i’m definitely a fan of what works and what benefits people. here, for whatever reasons, (a) public money wasn’t wasted on a trial that would have yeilded…no benefit i can see regardless of outcome, and (2) some valuable social programs were benefited.
and it’s not as tho this also included the outcome that now corporations will feel free to allow mobs to kill people during sales.
why is the result inferior to using public funds prosecuting this? your point is what, that it’s better to just be punitive (and incidently, give lawyers more work, but of course that wouldn’t have any bearing on your position of course)?
and i say this as a gal who’s waaaay not a fan of big bidness. to a fault.
also: tho i find prosecutors to generally be huge ego-hounds who often seem to prosecute just to wave their name in your face (sexting, the athlete bong hits), still…explainimg to an empty room wouldn’t do much good, would it?
i love this blog, but today’s post seems a bit snarky and impractical. i’m unclear as to what you’d have thought a better outcome. i mean better for the community.
also: i really do love this blog. it’s one of the best on the web, in any area. keep up the outstanding work!
You inferred some things that weren’t implied. There’s a long road between indictment and trial, and I didn’t argue that the case had to be tried, as opposed to a plea bargain. There’s no “punitive” measure to be imposed against a corporation, in the sense of prison, though if there was an individual who should be accountable, then that should ascertained rather than glossed over.
The most important thing wrong is that a district attorney acted outside her powers and made policy decisions that were not hers to make. It’s not her choice as to who gets the money, or whether you (or I) think they are worthy causes or not. Public officials must be constrained by the scope of their authority, not allowed to do whatever they please and then sell it to people like you as some amorphous good thing. Whether it is or not, it’s not the district attorney’s place to decide to exceed her authority.
Glad you like the blawg.
thanks for clarifying! my gmail is being wonky, and i didn’t actually get this till now (because i just got a macbook and am setting up speech for mail).
yes, your blawg is wonderful. not only do i learn from it, as a former copyeditor i enjoy your writing style as well.
again, thanks