While it is possible the Emperor still believes he is wearing clothing only visible to the elite, it is impossible to believe that there is anyone anywhere who believes that corporations are really people.
Imagine a Robin Williams riff ala Good Morning, Vietnam: "Well, hello IBM! Still up to your eyeballs, heh. … Have you stopped making ICBMs? … Oh, sorry, old joke, huh. So, you want a paperless office, but you of all "people" know you're always going to need some paper, right, I-B-M?"
The cynicism of Chief Justice Roberts and Associate Justices Scalia, Kennedy, Alioto, and Thomas in this decision is clear; none could possibly support this fiction in any other setting.
While there has been a large and sustained opposition to this attempt to render even more power to those who already have most of the power, an effort that could yield a clarifying amendment to our Constitution, I see value in using a martial arts approach and going totally with this fiction … going with it as far as possible.
If the criminal justice system were to treat corporations in the same way as it does real human beings, we would see a quite different world. The idea is that since voice determines personhood, then personhood determines the frame of responsibilities and the consequences of irresponsibility: Fines, jail and prison, and for capital crimes, capital punishment. As developed more fully below, the leadership of a corporation as well as those responsible for oversight of the leadership, are the ones who must be held accountable.
Since the law of the land in the United States of America says that corporations are people, and since the US Supreme Court has reinforced that by ruling that corporations are people when it comes to free speech and spending money for political candidates, then why are corporations not arrested, tried, convicted, fined, required to do restitution, and sent to prison ... or even executed?
If a corporation is mismanaging financial instruments, particularly if it has knowledge of this, and this results in the wholesale loss of money for other human people, the loss of homes, of pensions, the deep cuts in social services, the degradation of countless local communities due to loss of property and other taxes, then that corporation should be prosecuted for Grand Theft (or whatever felony charges would apply) and restitution should be mandatory.
If, heaven forbid, a corporation knows that what it is doing is killing people, then the corporation as a whole should tried for First Degree Murder. If they are killing people and are able to prove they didn’t know about it, then Second Degree or some version of Manslaughter would be the charge.
The same principle should be true with cases involving possible other, lessor felonies as well as misdemeanors.
All of this would amount to equal treatment under the law for all people.
The corporate “personhood” conceivably should include at least upper or so-called senior management (vice-presidents through CEO), the board of directors, as well as consultants and other independent contractors directly involved in supporting, designing, and/or implementing the actions by the corporation for which the entity has received the sentence.
They all would be convicted on the basis of the actions of the corporation as single “person.” The idea is that these individuals actually constitute the “person” of the corporation in the same way that our cells, organs, and body systems constitute the person’s body.
When someone holds up a liquor store with a gun, the defense would not be allowed to say that only the hand was guilty and that the arm should not be prosecuted for what the hand was doing, even if it carried the hand into the store and helped the hand to get away (along with the legs and feet).
Nor could the defense claim that the other hand and arm were innocent because they didn't know what the other hand and arm were doing.
Nor, again, would it work to say that only the portions of the brain that were responsible for initiating, planning, and carrying out the criminal act should be on trial but that the rest of the brain and the rest of the body should not be on trial.
And, finally, if the defendant were found guilty, the defense attorney could not argue that only the hand should be sent to prison or, in the worst-case scenario, only the hand and attached arm and brain portions responsible should be put in the clink for 20 years (13 with good behavior).
If the court did make this distinction, then there would only be good behavior because the parts in prison and the man himself (the rest of him, that is) would be dead.
But, no, if the defendant is found guilty of armed robbery, the whole person is sent to prison.
Right?
So why should not at least the upper management and board of a criminally guilty corporation be included in the verdict against this corporation? Are they not essential parts of the corporation that, if removed, would kill the “person” in the form of the guilty corporation?
A law needs to be crafted that would assign any criminal or civil judgment brought against a corporation to be applied without modification to senior management (CEO, CFO, COO, and all other vice-presidents), the board of directors, as well as consultants and other independent contractors directly involved in supporting, designing, and/or implementing the actions by the corporation for which the entity has received the sentence.
Such a law would not supplant or take the place of other laws covering individual illegal acts (e.g., embezzling) and the criminal and/or civil prosecution of any illegal actions by any individual covered by this new law once it is enacted.
If we could prosecute entire corporations for felonies and misdemeanors in this fashion, this could help push corporations in the direction of more responsible behavior toward the world in which they exist. Alternatively, this might lead to abandoning the legal status of corporations as being considered “people” with all the rights – yet few of the responsibilities – of human people. Either or both would be highly desirable.