Philip B. Heymann, chief of the Justice Department's criminal division, phoned Irving S. Shapiro, chairman of E. I. duPont de Nemours & Co., last Tuesday to talk about the corporate crime provisions of the proposed new federal criminal code.
Heymann said he couldn't accept a compromise on the provisions that had been reached quietly a few days earlier by bipartisan leaders of the Senate Judiciary Committee, including Chairman Edward M. Kennedy (D-MASS.) and the Business Roundtable, an elite group of 191 leading corporations. The compromise was too weak, Heymann protested.
Within 75 minutes of hanging up the phone, Shapiro, who speaks for the Roundtable on criminal code legislation, was in Heymann's office to negotiate a much tougher package of white-collar crime proposals. Less than seven hours after he arrived, agreement on the package was reached.
And Wednesday afternoon -- less than 24 hours after the phone call -- the package was approved unanimously by the Judiciary Committee.
This swift sequence was important. Overhaul of the criminal code has been before Congress for years, and even now its adoption in this session is regarded as a long shot. But, Capitol Hill sources agreed, the Roundtable's support -- or opposition -- could be pivotal.
Last year, the Senate passed a code overhaul bill containing several stringent provisions intended to deter white-collar crime.
One provision, called endangerment, set prison terms for any person who knowingly put another person "in imminent danger of death or bodily injury" by violating a sweeping array of health and safety regulations.
In the recent compromise, however, the Roundtable accepted the endangerment provision on condition that it be triggered only if a person "manifests an extreme indifference to human life."
Moreover, the provision would have been limited to certain environmental and coal-mine safety regulations. This limitation was denounced as "simply indefensible" by Assistant Attorney General Heymann.
In the version passed by the Judiciary Committee Wednesday, however, the "extreme indifference" language would come into play only in determining the severity of the sentence. As for the scope of endangerment, Heymann and roundtable left it to the committee. Pressed mainly by Sen. Patrick J. Leahy (D-Vt.). The Committee Wednesday extended it to cover regulations relating to occupational safety and health, food and drugs, hazardous substances and medical laboratories, and additional environmental laws.
Although the department and the Roundtable remain free to support or resist other, related proposals, each agreed not to oppose or to walk away from the package. Its other principal elements include:
Enabling judges to compel persons convicted of certain offenses, including fraud, to make restitution to the victims (a similar provision was approved yesterday by the House Judiciary subcommittee on the criminal code) and to notify the victims of the convictions so that they can sue for damages.
Barring corporations from paying fines imposed on their officers, unless such payments are "expressly permissible under applicable state law."
The need to sharply increase fines to deter corporate crime was recognized some time ago by the Roundtable, so that wasn't a serious issue.
On Wednesday, with Kennedy providing the decisive vote, his Judiciary Committee defeated, 8 to 7, a provision, strongly urged by the Justice Department, to enable the government to enjoin ongoing frauds. The provision would avoid the months -- and even years -- sometimes required for investigation and criminal prosecution.
The evolution of the new package began at a point in the phone call when Shapiro, who had been a criminal division lawyer for 8 1/2 years, offered to fly at once from Wilmington, Del., to Washington to meet with the division's present chief.
Heymann credited Shapiro with having demonstrated "a real sense of responsibility." By contrast, Mark J. Green, director of Ralph Nader's Congress Watch, accused the committee of a "capitulation" to the Roundtable in agreeing to the initial compromise. The department then managed to "salvage the two or three corporate crime sections still in the bill," Green said.