ARTICLES
ERASING THE VICTIMS OF CORPORATE CRIME
†
The American Criminal Law Review has not independently reviewed the data and analyses described herein.
Data on file with author.
Mihailis E. Diamantis*
ABSTRACT
A casual observer would be excused for thinking that corporate crimes are
generally victimless. Even an informed observer would be hard-pressed to articu-
late how, if at all, the criminal justice system accounts for victims in resolving
cases against corporations. As prosecutors focus on big-sticker fines and compli-
ance mandates, victims drop out of the equation. Sometimes, prosecutors even
seem to take steps to actively exclude victims. The vague impression that victims
are missing from corporate criminal justice is empirically verifiable. Drawing on
an original, hand-collected data set of corporate criminal resolutions and inves-
tigations, I argue that the most striking thing about corporations’ victims is how
little we know about them.
This Article seeks to reintroduce prosecutors, judges, and scholars to the vic-
tims of corporate crime. It uncovers mechanisms through which the criminal jus-
tice system erases the many thousands of people corporations physically and
financially injure each year. Only by finding out who corporate crime’s victims
are can we begin to acknowledge and remedy the wrongs they suffer. Below, I
offer several proposals for surfacing victims’ voices and interests.
INTRODUCTION: HOW TO ERASE A VICTIM . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. LAW AND JUSTICE REQUIRE VICTIM PARTICIPATION . . . . . . . . . . . . . . . . 5
II. THE HUNT FOR MISSING VICTIMS—AN EMPIRICAL STUDY. . . . . . . . . . . 8
A. DOJ Publications Rarely Mention Victims of Corporate Crime 8
B. Learning About Victims from Public Records Is Impossible . . . 10
III. INCORPORATING VICTIMS INTO CORPORATE CRIMINAL JUSTICE . . . . . . . . 15
A. Collect and Report Data About Victims . . . . . . . . . . . . . . . . . 16
B. Appoint Victim Representatives . . . . . . . . . . . . . . . . . . . . . . . 16
C. Default to Charge Offenses that Center Victim Interests . . . . . 19
D. Insist on Trials When There Are Individual Victims . . . . . . . . 21
†
* Professor of Law, The University of Iowa, College of Law and Department of Philosophy. I am grateful to
my research assistants—Jacklyn Vasquez, Andrew Ascher, Jessica Davis, Payton Raso, and Jacob Schiller—for
their many hours tracking down information about the victims of corporate crime to carry out the study described
below. The available data seemed almost calculated to thwart their effort. © 2025, Mihailis E. Diamantis.
1
INTRODUCTION: HOW TO ERASE A VICTIM
A few years ago, two Boeing 737 MAX planes crashed, killing 346 people.
1
Andrew Tangel, Andy Pasztor & Mark Maremont, The Four-Second Catastrophe: How Boeing Doomed
the 737 MAX, WALL ST. J. (Aug. 16, 2019), https://www.wsj.com/articles/the-four-second-catastrophe-how-
boeing-doomed-the-737-max-11565966629.
The
same cause has been attributed to both crashes: a faulty autopilot system had tipped
both planes into irreversible nose-dives.
2
Jack Nicas, Natalie Kitroeff, David Gelles & James Glanz, Boeing Built Deadly Assumptions into 737 Max,
Blind to a Late Design Change, N.Y. TIMES (June 1, 2019), https://nyti.ms/2WCoTHk; Mika Gro
¨ndahl, Keith
Collins & James Glanz, The Dangerous Flaws in Boeing’s Automated System, N.Y. TIMES (Apr. 4, 2019), https://
nyti.ms/37KLBi1.
Investigations showed that, leading up to
the tragedies, Boeing personnel cut corners, ignored warnings, hid material
changes from airlines, denied any need to retrain pilots, and exerted “undue pres-
sure” on the Federal Aviation Administration (FAA)—the organization charged
with overseeing air safety.
3
The company promoted a culture that played fast and
loose with safety protocols and silenced people who voiced concern.
4
David Gelles, ‘I Honestly Don’t Trust Many People at Boeing’: A Broken Culture Exposed, N.Y. TIMES,
https://nyti.ms/2NfMPKZ (Oct. 15, 2021); see also Andy Pasztor & Alison Sider, Internal Boeing Documents
Show Cavalier Attitude to Safety, WALL ST. J. (Jan. 10, 2020), https://www.wsj.com/articles/internal-boeing-
documents-show-cavalier-attitude-to-safety-11578627206; Bill Chappell & Joel Rose, Whistleblower Joshua
Dean, Who Raised Concerns About Boeing Jets, Dies at 45, NAT’L PUB. RADIO (May 2, 2024), https://www.npr.
org/2024/05/02/1248693512/boeing-whistleblower-josh-dean-dead (providing that individuals who raised
concerns about the 737 MAX were fired for raising concerns); Bill Chappell, Boeing Whistleblower John
Barnett, Who Raised Alarm Over Plane Quality, Is Found Dead, NAT’L PUB. RADIO (Mar. 12, 2024), https://
www.npr.org/2024/03/12/1238033573/boeing-whistleblower-john-barnett-dead.
A criminal case against Boeing would have been a slam dunk on any number of
possible charges, from manslaughter,
5
to wire fraud,
6
to securities fraud,
7
to lying
to federal authorities.
8
Nonetheless, no one familiar with the workings of corporate
criminal law was surprised when the Department of Justice (DOJ) announced it
would not prosecute the company.
9
Deferred Prosecution Agreement, United States v. Boeing Co., No. 4:21-CR-005-O, 2021 WL 7287662 (N.
D. Tex. Jan. 7, 2021), https://www.justice.gov/opa/press-release/file/1351336/download.
Economically important corporations like
1.
2.
3. Status of the Boeing 737 MAX: Hearing Before the Subcomm. on Aviation of the H. Comm. on Transp. &
Infrastructure, 116th Cong. (May 2019).
4.
5. 18 U.S.C. § 1112. Boeing caused death by selling faulty planes “without due caution and circumspection.”
See id.
6. 18 U.S.C. § 1343. Boeing transmitted false reports concerning plane safety to the FAA for the purpose of
advancing its “scheme or artifice to defraud” the agency and Boeing customers. See id.
7. 18 U.S.C. § 1348. Through its various public misrepresentations about plane safety, Boeing “knowingly
execute[d] . . . a scheme or artifice to defraud” investors about the value of Boeing stock. See id.
8. 18 U.S.C. § 1001. Through its submissions to the FAA, Boeing “knowingly and willfully falsifie[d] ...a
material fact” concerning a “matter within the jurisdiction of the executive . . . branch of the Government.”
See id.
9.
2 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:1
