Rape For Thee, But Not For Me
Does Professor Steven Bainbridge care about prison rape, or just about prison rape when the victim is a privileged endomorph like himself?
an issue on which I have been writing for some time, as it is an important factor in evaluating the accelerating criminalization of agency costs.
In other words, prison rape should be considered in determining to whether prosecute CEOs, because a corporate head who's merely negligent or greedy but didn't defraud shareholders might be convicted and thereafter raped. Bainbridge also bemoans the fact that "when it comes to corporate executives, many people seem to see prison rape as an appropriate sanction."
Perhaps the Professor is equally concerned about the rape of dope dealers or burglars or of those falsely accused of crimes who are convicted because they can't afford competent counsel or they're a victim of corrupt cops. But I haven't seen that post. (The other posts the Prof links to criticize the prosecution of executives rather than the proliferation of prison rape.)
What I have seen is this:
Put bluntly, Dennis Kozlowski faces spending the rest of his life worrying about prison rape.
If we were confident that prosecutors could tell the difference between corporate criminality and mere bad corporate governance, and we were confident that prosecutors would content themselves with going after only the former, we might not care if the Kozlowskis of the world spent their days looking over their shoulders (so to speak). Yet, as the Kozlowski story illustrates, it's very hard to tell the difference between criminality and bad governance.
Indeed, as corporate law has long recognized, it can be difficult to tell the difference between good and bad corporate governance. As corporate law also has long recognized, there are serious costs associated with imposing high sanctions on executives.
So Bainbridge isn't really concerned with prison rape itself as much as the indirect economic consequences caused by risk-averse CEOs who place their own interest in not being raped ahead of the bottom line. And if you're not a top exec, whether guilty or innocent, don't hold your breath waiting for the Professor to champion your cause.