Legal Criteria for Crime
To our knowledge, no criminal law statutes contain any explicit identification of the rules that ought to be followed to determine when a behavior ought to be defined as a criminal act in the law. That decision—the decision to define something as harm—is left up to lawmakers. And since the criminal law provides no rules that ought to be followed by lawmakers when deciding which acts to criminalize, we can expect that lawmakers follow different criteria across locations and across time. These different rules that lawmakers impose when they make the law explains why the criminal law varies over time and from place to place.
Lacking guiding principles or rules about the behaviors that the criminal law ought to treat as criminal, it is fair to ask about the kinds of concerns, rules, or influences lawmakers actually employ to create the criminal law. Here again, to our knowledge, criminologists who advocate for the study of crime as strictly reflected in the criminal law rarely attempt to discern the rules lawmakers employ when creating the content of the criminal law, an issue we will need to explore more completely.
If the rules lawmakers use to create the criminal exist, they are vague and their application is erratic. This is especially true if one considers the treatment of corporate crime in the criminal law. The criminal law itself does not usually address corporate behavior as a crime; rather, corporate behavior is often addressed by civil, regulatory, and administrative law. And indeed, other forms of law address the criminal behavior of corporations and identify behaviors corporations commit as crimes. Criminologists often ignore noncriminal laws with criminal implications even when it is just a matter of chance that an act is not classified as crime. For example, it is widely recognized that the same corporate act may be treated criminally, civilly, or administratively. The choice often depends on politics, personal ideology of the decision makers, and economic resources of agencies enforcing the law. Moreover, even when corporations are treated as criminal, their crimes are not recorded in the official state statistics along with other index crimes. Thus this lack of inclusion shapes the study and definition of crime. For example, in November 2013, the BP Corporation was adjudicated guilty for 14 criminal law violations related to the Deepwater Horizon oil spill in the Gulf of Mexico. This corporate crime will not be included in the Uniform Crime Reports or victimization surveys. There is no scientific reason for including some crimes in the databanks criminologists typically study while ignoring others.
There also are no methodological rules about the specific forms of behavior that could be criminalized, even when forms of behavior that are not currently identified as crimes by the criminal law are similar to the behaviors the criminal law already defines as crime. Sometimes, crimes are omitted by criminal lawmakers because they are said to be different by virtue of some element of the behavior. For example, the criminal law often refers to intent when identifying crimes. There are criminal laws in which the intent of the actor may make a difference between an act being defined as a crime or some other form of noxious behavior. When it comes to corporate crime, intent is a difficult issue to address, since despite treating the corporation as an individual, the corporation has no mind and therefore cannot form intent in the same ways as individuals. This situation produces a great deal of confusion when it comes to applying the criminal law to corporations and for criminologists when they think about the concept of crime and corporate offenders (see generally, Frank 1988; Swigert and Farrell 1980, for legal analysis see, Grogin 1986).
Criminologists often exclude the possibility that corporations can commit crimes due to the relationship between corporations and the state. In the law, corporations can be treated as individuals, and thus in a legal sense can “stand in” for the actions of the individuals who make the decisions that drive corporate behaviors (Grogin 1986). The fact that individuals in corporations make intentional decisions about corporate behavior is often lost on criminologists. To illustrate that point, some environmental laws assume that when corporations violate the law they do so intentionally and knowingly (Burns, Lynch, and Stretesky 2008). If one understands that corporations can only act when people act and make decisions, then one could also say that corporations rarely engage in unintentional actions. For the corporation to “behave,” someone with the power to shape the behavior of the corporation must act. There are many examples that demonstrate how corporations have caused harm through their products and production practices. A classic case involves the Ford Motor Company’s decision to manufacture the Ford Pinto (Cullen, Maakestad, and Cavander 1987). Ford executives understood that their product was unsafe because test results indicated that the Pinto could explode when impacted from the rear of the vehicle. Ford executives had viewed the safety videos produced by their own lab showing the Pinto exploding (a video that you can now view on YouTube). These particular Ford executives decided to continue to market the Pinto. When the executives were offered an engineering solution to fix the problem, they intentionally decided not to do so to protect narrow profit margins. Nearly all decisions by corporate executives were documented in the company’s own internal memoranda (for an alternative, structural interpretation of the Pinto case, see Lee and Emann 1999). And while Ford knowingly engaged in activities that harmed members of the public and killed some people, the criminal law did not define its behavior as a crime. This is true despite the intent of Ford executives to knowingly market a car that could explode.
The Ford case is not a random case, and we see similar patterns of corporate behavior in the case of drug manufacturers that regularly expose people to harm by marketing unsafe products (Abramson 2008; Angell 2005; Goldacre 2013; Petersen 2008). For instance, in July 2012, GlaxoSmithKline was fined $3 billion for its illegal marketing scheme involving Paxil and Wellbutrin and for withholding safety data. The fine levied against the company was a mere 11 percent of the returns generated by those drugs. It is beyond the purpose of this work to review the many examples of this behavior (see numerous examples in Friedrichs 2010). The point is that the criminal law does not specifically address these kinds of acts, despite the fact that drug company executives and researchers know that there is a potential for their product to cause harm. They know this because they are required, by noncriminal forms of law, to perform safety tests on their products. And sometimes when those tests fail, drug manufacturers tamper with the results and misreport them in order to allow their products to reach the market even though they know the products cause harm (Frank and Lynch 1992). Again, the criminal law does not contain any specific definition of crime that relates to these intentional acts that create harm. These behaviors, one can argue, are no different than criminal acts and certainly are no different than acts defined as crimes such as firing a gun into a crowd where there is no specific intent to harm a specific person.
These observations reinforce an earlier point—that the criminal law does not contain rules that guide how the criminal law ought to apply or the behaviors to which it should apply. The criminal law does not say that a “behavior should be considered a crime when . . .” Rather, all the criminal law does is create a list of behaviors to which it applies. In making the decision about the harms that get listed as violations of the criminal law, the criminal law itself provides no guidance to lawmakers concerning the kinds of acts to which it ought to apply. Those decisions are left up to lawmakers.