Should corporate executives be criminally prosecuted for their misdeeds?

Threatening executives with criminal punishment for wrongdoing would provide much more effective deterrence and defence, argues philosopher Jeff McMahan. 

NS

Sign Up

Get the New Statesman's Morning Call email.

Between 2012 and 2014, New York City’s mayor Michael Bloomberg attempted to ban the sale of soft drinks in cups holding more than 16 ounces. At the time, more than half of adult New Yorkers were obese or overweight, and the prevalence of diabetes – particularly among minority populations – was increasing. The average cup of Coke at NYC cinemas was 48 ounces and contained almost 40 teaspoons of sugar.

But the soft drinks industry conducted an aggressive and expensive campaign against the proposed ban, claiming that it was a threat to individual freedom, and eventually filed a lawsuit that defeated the efforts of the mayor and the Board of Health. As a spokesman for the American Beverage Association remarked, “this is the stuff that you would expect any industry to do.”

Now imagine that you are selling a product, of your own invention and manufacture, and you unexpectedly discover that it is killing a small proportion of those who consume it. You are the only one who knows it is having this effect, which others are unlikely to detect during your lifetime. Even if this effect were publicly discovered, the product has been approved by the relevant governmental regulatory agency, so you could credibly claim ignorance and wouldn’t be liable to criminal prosecution or civil lawsuits.

Most of us, I suspect, would be horrified, would recall the product, and would do all we could to repair the damage. Yet, as the soft drink example shows, corporate executives who find themselves in a similar situation tend to react quite differently. Their response is almost invariably to conceal the discovery or, if that is impossible, to deny the facts and deploy corporate resources to create public scepticism.

Corporate leaders often hire specialists in the manipulation of public opinion to intimidate or defame those who challenge the product’s safety, and recruit scientists willing to express doubts about the evidence. These tacticians also aggressively lobby incumbent government officials and fund campaigns to elect new officials in the hope of blocking the enforcement of regulatory constraints or, better yet, eliminating them altogether. In short, corporate executives typically strive to continue selling products they know to be harmful.

The tobacco industry is notorious for these tactics. Its products killed an estimated 100 million people in the 20th century and are predicted to kill as many as a billion this century. But the pattern is also familiar in the actions of the asbestos industry, the pharmaceutical industry, chemical companies, and more recently the food and sugar industries and fossil fuel companies, whose own scientists alerted executives to the threat of climate change long before most of us had even heard such terms as global warming. 

It seems natural to say that the culprits in these cases are industries and companies. But this suggests that the acts were committed by institutions, rather than individual people. This assumption tends to underlie most reactions to these cases. The relatively few legal responses to the sale of harmful products have generally held companies liable to compensate victims rather than holding individuals liable to civil penalties, criminal punishment, or both.

Most philosophers believe that collectives can bear moral responsibility for wrongdoing and can be morally liable to compensate victims or suffer punishment. But I believe the doctrines of collective responsibility that most philosophers endorse have implications that are morally mistaken.

Suppose, for example, that corporate executives engage in wrongdoing that causes harm to innocent people. Many philosophers would think that because the corporation itself – and not just its executives – is responsible for the wrongdoing, losses to any employee of that corporation can be justly imposed in the course of ensuring that victims are compensated. This is solely because each employee is a part of the corporation, not because of anything the employee has done. This seems unjust to me.

But even if there are robust forms of collective responsibility, they do not exclude individual responsibility. In fact, if the corporation is responsible for wrongdoing and the executives are the corporate members who make the crucial decisions, then the executives’ overall responsibility may be increased, for it may be the sum of their individual responsibility and their share of the collective responsibility.

Still, one might think the responsibility of executives is mitigated because consumers who voluntarily buy dangerous products bear primary responsibility if their use of those products results in their death. Executives merely sell people what they want.

Yet this point is of limited application. First, products often harm people other than those who buy and use them. This is true of tobacco, asbestos, pesticides, guns, and indefinitely many other items. Second, people’s purchases of dangerous products are often only weakly voluntary. Voluntariness is a matter of degree and acts are less voluntary to the extent that they result from coercion, deception, or manipulation. The marketing of dangerous products has often involved deception and nearly always involves manipulation through advertising that makes people want what they have reason to avoid.

Purchases are clearly only weakly voluntary when the product is addictive, as tobacco products are.  Of course, one might argue that people are no longer manipulated into becoming addicted to tobacco products, at least in societies in which the government has prohibited advertisements for them and required them to carry warnings. Yet executives have found other means of inducing people, particularly young people, to become addicted to nicotine, so that their future purchases will be only weakly voluntary. The most obvious of these has been the aggressive marketing of electronic cigarettes to the young. But social media have also provided covert means of advertising. As of August 2018, ‘hashtags’ associated with tobacco companies’ products had been viewed more than 8.8 billion times in the US.

Another defence of executives who use manipulative advertising to sell harmful products is that they themselves neither kill people nor intend the deaths of those killed by their products. But, while these claims are true, neither is excusing. Franz Stangl, commandant of two Nazi extermination camps, may have spoken truly when he said, ‘I have never intentionally hurt anyone, myself’. Yet, even if he never killed anyone, his action was far worse than that of any killer in his camps, for it was an essential part of the cause of the deaths of a vast number of innocent people. The same is true of decisions made by executives to manipulate people to buy products that will eventually kill some proportion of them.

Stangl, of course, intended the deaths of captives in his camps, and most people believe there is something especially wrong about killings that are intended rather than merely foreseen. And executives clearly do not intend the deaths of their customers, which would be counterproductive. But executives do intend to affect people in ways they know will cause some of them to die, and this is just as bad as intending their deaths. A soldier who throws his comrade on a grenade as a means of saving himself does not intend his comrade’s death; for none of his intentions would be frustrated if the grenade failed to explode. But the soldier’s act is distinctively wrong for the same reason it is wrong to try to bring about a relative’s death in order to inherit her wealth. Both are instances of intentionally using a person in a way one believes will cause his death as a means of achieving a self-interested aim.

How, then, do corporate executives – who, through manipulation and deception, sell products they know to be potentially lethal – differ morally from ordinary murderers? One difference is that what the executives intend for each of their customers is not likely to kill them but only raises the probability of their being killed, and often not by much. But this difference is offset by the fact that the scale of their action ensures that it will cause a vast amount of suffering and many deaths – far more than ordinary murderers cause. While other people, including the victims themselves, share responsibility for these deaths, that does not diminish the responsibility of the executives. What is more, the executives’ action is not merely premeditated but is dictated by years of meticulous planning, usually with careful attention to the law, which provides ample opportunity for moral reflection.

These executives are, however, seldom seriously inconvenienced by the law. They are rarely the targets of civil lawsuits, yet they clearly have no moral right to retain profits acquired through wrongdoing. At a minimum, therefore, justice requires that they be compelled to use their personal profits from dangerous products to compensate victims or their families. But they should also be liable to criminal punishment.

Many people believe that punishment is a matter of giving offenders what they deserve. In my view, threats of punishment and punishment itself are instead justified by the protection they afford to innocent people, partly through deterrence and partly through defence via the incapacitation of offenders through imprisonment.

Sometimes the prospect of civil lawsuits is sufficient to deter people from engaging in harmful activities. But this has not worked in the case of executives who market dangerous products. They simply factor any anticipated losses into their cost-benefit calculations, as when a car manufacturer determines that it will be less costly to pay damages in the courts than to replace a defective part that is statistically certain to kill some number of drivers.

Threatening executives with criminal punishment would provide much more effective deterrence and defence. It could save thousands or possibly even millions of lives. This would of course require modifications of the criminal law that are now almost inconceivable, when corporate executives have unprecedented political power. Yet with so much at stake, it is imperative to criminalize the predatory forms of deception and manipulation I have described.

Jeff McMahan is White’s Professor of Moral Philosophy at Corpus Christi College, Oxford. Jeff is the author of Killing in War and co-founder of The Journal of Controversial Ideas.

This article is part of the Agora series, a collaboration between the New Statesman and Aaron James Wendland. Aaron is assistant professor of Philosophy at the Higher School of Economics. He tweets @ajwendland.