The Humanity of It All

Ask any person on the street: Is a corporation a person? And more likely than not, the person will say: No, the corporation is not a person. People work at corporations. But no, the corporation is not a person.

Ask any lawyer, or law professor, the same question, and the lawyer will say: Of course, under the law, the corporation is a person. It is a legal fiction, yes. But it is a person, nonetheless.

This was decreed early in our legal history. Because if a corporation was not a legal person, it would be denied key constitutional rights and remedies, and would be on shakier ground in claiming other legal protections. And lawyers being guardians of the powerful, as they tend to be, could never deny the most powerful entity in society the most basic of protections.

We started thinking about corporate personhood the other day when we stumbled across a law review article titled "What We Talk about When We Talk about Persons: The Language of a Legal Fiction," 114 Harvard Law Review 1745, April 2001.

The article looks at two primary categories: First, the non-human person. That would be the corporation. It's not a human being. But it is treated as a person for the purposes of the Constitution. And second, the non-person human. This would be, for example, a slave.

You can't be a person for the purposes of the Constitution or other legal protections if you are just a piece of property. So, the slave master could beat his slave. And that wasn't considered "assault and battery" because the slave was the property of the slavemaster -- not a person for that purpose.

There wasn't uniformity in this view -- the Mississippi Supreme Court in 1820, for example, held slaves within the scope of persons protected by that state's murder laws, emphasizing that any other result would be "a reproach to the administration of justice," according to the law review article.

So, you could beat the crap out of your slave, but you couldn't kill him. But on the whole, a slave was property, not person.

Slaves tried to turn this to their advantage.

So, for example, when a young Virginia slave girl named Amy was accused in 1859 of stealing a letter from the Post Office, she argued she wasn't a person covered by the criminal law against such theft -- she was just a slave.

But the prosecutor shot back, "I cannot prove more plainly that the prisoner is a person, a natural person, at least, than to ask your honors to look at her. There she is."

The judge rejected Amy's reasoning, saying he could conceive of "no reason why a slave, like any other person, should not be punished by the United States for offences against its laws."

But we like the prosecutor's gut reaction in this case. "There she is."

And if we were to point to Exxon, where would we point? To the $5 a gallon unleaded sign?

We recently interviewed John Coffee, the Columbia Law School professor. And we asked him about the rise of deferred prosecutions for corporations.

Increasingly now, if a corporation commits a crime, and it gets caught, it doesn't have to plead guilty to the crime.

After the demise of Arthur Andersen, there is a fear among prosecutors that forcing a corporate criminal to plead guilty to a crime might lead to the demise of the corporation -- throwing out of work thousands of innocent workers and wiping out the investments of innocent shareholders. So, the corporation's attorney teams up with the prosecutor and brings criminal charges against the criminal executives.

We wanted to know whether Professor Coffee was concerned about this double standard.

If you are an individual and you commit a crime, then you plead guilty and go to jail.

But if a corporation commits a crime, then it gets a deferred prosecution or non-prosecution agreement, pays a penalty, makes some changes -- but suffers no fundamental loss of freedom to do business.

Professor Coffee gave a long answer. But the part that intrigued us was this: "The corporation is after all a legal fiction," he said. "The officers are real human beings that may merit personal criminal responsibility."

So, the corporation benefits from its personhood, with all kinds of Constitutional protections, but when it comes to enforcing the law -- the corporation is after all a legal fiction and therefore doesn't merit personal criminal responsibility?

Why not?

If a corporation is a person for the purposes of the First Amendment -- even the invocation to "Drink Coke!" gets strong First Amendment protections -- it is a person for the purposes of the criminal law and merits criminal responsibility if it commits a crime.

But we actually prefer a different approach.

You are a person only if you are a living, breathing human being.

Slave -- a person.

Corporation -- not.

Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime Reporter, http://www.corporatecrimereporter.com. Robert Weissman is editor of the Washington, D.C.-based Multinational Monitor, http://www.multinationalmonitor.org. Mokhiber and Weissman are co-authors of On the Rampage: Corporate Predators and the Destruction of Democracy (Monroe, Maine: Common Courage Press).

(c) Russell Mokhiber and Robert Weissman