Capital Punishment

April 12, 2019

I propose that we take into receivership property that is used irresponsibly. Confiscation would be mandated in the case of assets used in a way to cause harm to employees, customers, or the general public. We would be seizing property--items of land, equipment, currency, securities, industrial plants, extraction sites, and other capital assets--from parties that used them in a way that caused injury.

This idea is not as radical as it sounds. If I default on the repayment of a debt, I can be separated from my property. The law gives creditors a variety of ways--foreclosures, attachments, replevins, executions--to seize assets from a defaulting debtor. It's a pretty heavy penalty for an offense that may be altogether innocent, but we've always tolerated it as a society. That the burden falls almost always on people who don't have the means to bear it seems to bother us not at all.

The difference, in the case of misuse of property, is mainly one of scale. We would be removing items of greater value, not just a house or a car. Another difference is that, in at least some cases and maybe in most cases, the loss would be bearable and even affordable. Owners of capital lose money routinely when the value of corporate shares declines, and confiscation may be only slightly worse than a precipitous decline.

There's nothing novel or radical about receivership. The receiver takes the place of the owner or owners of an organization's assets. The owner could be a person or a family or a corporation or an arrangement of partners. The organization could be a commercial enterprise, a social agency, a professional association, or even a social club. The assets could be just about any item of property. During the early years of my law practice, my state adopted a receivership scheme to keep the heat on for tenants of landlords that couldn't pay their oil bills. Lawyers, judges and rent receivers learned how to use the law to beneficial effect within a few weeks of adoption. Receiverships have been a staple of state law for generations.

Grounds for receivership might be the commission of any offense by or on behalf of the owners. Depending on the punitiveness of the public in adopting a system of receivership, triggering offenses might range from acts that are merely negligent--on the Draconian side--to malfeasance that is clearly criminal--the lenient alternative. At some designated threshold of severity of harm, receivership would kick in.

In the case of misuse of property, receiverships could be ordered and receivers could be selected by a dedicated agency of state government or by the preference of employees, customers or the local public. The obligations of the receiver of a particular asset might be to preserve the asset to the extent possible while managing the asset with due regard for the injured employees, customers or members of the public. Any profit earned in the process would escheat to the state in the scheme I would recommend.

A receivership scheme might encompass imminent threats to public health and safety, as well as acts of malfeasance. This could protect potential victims of predictable, preventable catastrophes by early intervention.

It's possible that the assets of for-profit business--commercial enterprise being largely a branch of organized crime--would eventually pass wholly into the hands of receivers. It's also possible that the owners of capital assets would clean up their act and voluntarily cede the power that accrues to them solely because of the vast wealth they control.