But it’s just the beginning
AARON REGUNBERG in Common Dreams
That’s because criminal law plays a unique
role, not just in our legal system, but in society at large. It is how the
state takes action to protect citizens from harm, promote public safety, and
hold wrongdoers accountable. It’s also how we illustrate what’s right and wrong
and publicly mark that certain acts are simply not acceptable—that they are
condemned by the community at large.
Of course, we all know who is most likely to be on the receiving end of that condemnation. Most prosecutorial offices spend the vast majority of their resources prosecuting street-level crimes and low level offenders who are disproportionately likely to be people of color, suffer from substance use disorders or mental health problems, and live in poverty.
Because of these inequities, progressives
are generally distrustful of the criminal justice system, and the “progressive
prosecutor” movement that has emerged in recent years—and that is currently
facing backlash in some parts of the country—has primarily focused its agenda
on prosecuting less: bringing fewer charges, seeking lower sentences, working
towards decreased incarceration.
These are critically important priorities.
But District Attorney Alvin Bragg’s successful prosecution of Donald Trump
highlights that being a “progressive prosecutor” isn’t just about prosecuting
less.
Rather, it can—and should—also be about
using the power of the criminal justice system to protect our communities from
all who would do them harm, particularly the rich and well-connected whose
wealth so often allows them to escape accountability for the harms they commit,
regardless of how severely they threaten public safety or welfare.
The truth is that criminal prosecution has
a great track record of forcing powerful actors to stop endangering others,
even when all other methods have failed. Take, for example, the prosecution of
the poultry rendering company Central Industries,
which committed over one thousand environmental violations over the course of
multiple years, despite repeated civil penalties, until it was at last
criminally prosecuted and made to pay criminal restitution.
Or look at McWane, Inc., a pipe
manufacturing company that continued committing dangerous worker safety
violations, regardless of the civil penalties it incurred, until it was
criminally convicted and forced to make major investments in worker
protections.
Indeed, several district attorneys and
state attorneys general have begun prioritizing prosecutions against
employers for wage theft, misclassification, payroll fraud, and other crimes
against workers. Some offices have even created dedicated units to lead this work.
Another idea that has begun attracting attention
among a growing number of
criminal law professors, former prosecutors and legal advocates is the
prosecution of Big Oil companies for climate-related harms.
Advocates for this approach have argued
that major fossil fuel companies should be charged with reckless homicide for
causing climate-related deaths, reckless endangerment for contributing to
extreme weather events, criminal destruction of property for climate losses,
and fraud, conspiracy, and racketeering for spreading climate disinformation.
Given that these companies are responsible
both for knowingly generating a substantial portion of all the greenhouse gas
emissions that have caused the planet to heat up and deceiving the public about
the dangers of their fossil fuel products so they could continue to generate
those emissions, a strong case exists for investigating whether Big Oil should
be held criminally accountable for climate disasters.
Ideas like these provide a template for how
district attorneys across the country could redefine public safety to include
not just the protection of communities from street crime but also from the more
systemic—and often far, far more harmful—crimes of wealthy and powerful
corporations.
That’s not to suggest that prosecuting
massive companies for economic or climate-related crimes would be easy. But the
same could be said about prosecuting a former president. As we’ve seen with
Trump’s criminal conviction this week, it’s possible to take such challenges
on, rather than surrendering to them. And doing so can have a big effect.
Nobody should be above the law. In
furtherance of this principle, local prosecutors in Manhattan have successfully
prosecuted one of the most powerful men in the world. It’s time for their
counterparts in districts across the country to begin considering how they,
too, can stand up to the powerful actors endangering their communities.
AARON REGUNBERG is
a former state legislator and a long-time progressive organizer. His writing
can be found at The New Republic, Newsweek, The Boston Globe, Balls and
Strikes, Dissent Magazine, Ecology Law Quarterly, and Harvard Environmental Law
Review.
