I think there's a more fundamental question, "what does it mean for a corporation to engage in criminal conduct?"
A corporation is just a group of people acting together, and it's pretty well established in international law that collective punishment isn't acceptable; and on the flip side, a corporation can neither "act" nor "think" independently, but rather does so via the humans involved. (Perhaps this would change with corporate-owned AI?)
In all the cases I've seen where a corporation is alleged to have engaged in criminal conduct, there was in fact a human -- or several humans -- who were broke the law. As far as I'm concerned, that's where the buck should stop; it seems that prosecutors tend to target corporations simply because it's easier than doing their job properly and pinning down who specifically bears responsibility.
Companies have policies… stuff like data retention policies, for example, could be set up in a way as to obfuscate criminal activity, but in a way not obvious to a reasonable good-faith individual working for the company. In that case, the company should be made to change.
I guess it would also be ok to go after C-levels or whoever sets the policy. But, it will be hard, I think. High-level guidance can create an incentive structure to break the law without actually saying “break the law.”
I basically agree but I think it would be really tricky to implement.
What about giving you bank employees performance numbers that can’t really be met with due diligence, and then not checking their work too much.
Similarly, it is evident that software companies are not able to produce defect-free software (so, somebody is setting up an incentive structure to push bugs into production). There must be some wrong incentive structures, but it is hard to say where they come from.
You're leaving off both the "limited liability" and "it's a person with legal rights" parts of a corporation.
If it's a person, then they might have to go after the corporation. Alternatively, each corporate crime might be a conspiracy charge.
With limited liability, it's unclear how much one can discourage the bad behavior if there's distance between the owners and the punishment.
I oppose both of these concept by default for criminal behavior. Power and accountability should always go hand in hand. Only people should be people, too.
Limited liability is the source of many ills. I'm fine with people pooling capital to create partnerships, but where things take an odd turn is the idea you can create a business enterprise that can incur massive debts, yet face no accountability for repaying the damage such an enterprise causes.
> a corporation can neither "act" nor "think" independently, but rather does so via the humans involved. (Perhaps this would change with corporate-owned AI?)
This is ignoring that levels of complexity creates new emergent behavior. If you're willing to believe that "AI" could make a corporation think independently, then how is a pile of paperwork running on a substrate of human wetware not the same dynamic?
> it seems that prosecutors tend to target corporations simply because it's easier than doing their job properly and pinning down who specifically bears responsibility
No, the problem is exactly the sorting through the emergent complexity of the corporation to correctly assign blame. The low-level person who did the actual illegal action is likely sympathetic and mostly judgement proof, and was likely incentivized to break the law by corporate policies. Meanwhile the corporate policies are phrased in terms of abstract metrics that aren't illegal per se, especially how they're written down.
Taking the fundamentalist view, that the individual would-be-fall-guy humans should take a hard line and refuse to break the law, doesn't solve the problem - it only increases the level of incentive required until someone is willing to do it. And focusing blame this way helps the higher up management escape accountability since they didn't actually break the law themselves.
One correct answer would be to charge all of the involved parties like the criminal conspiracy it is, but the capital-wielding upper classes escaping accountability is a dynamic as old as time.
