Corporate Criminal Responsibility
CORPORATE CRIMINAL RESPONSIBILITY
Criminal prosecutions of corporations and other fictional entities have occurred routinely in the United Kingdom since the nineteenth century and in the United States since the beginning of the twentieth century. During the later portion of the twentieth century the Netherlands, Canada, and France enacted standards for holding fictional entities criminally liable. Elsewhere in the world, legislative bodies and courts are being urged to recognize corporate criminal liability by advocates who point to the major role played by organizations in modern day life and argue that active prosecution of organizations is essential to effective crime control efforts. Even so, because of theoretical and practical problems in prosecuting fictional entities, corporate criminal liability is controversial. The debate centers on the issues of how to measure a fictional entity's liability, how to sanction a fictional entity, and whether criminal prosecution of organizations is effective.
By the fourteenth century, fictional entities were well recognized in English law. These early corporations were created by grants from the Crown or Parliament and consisted almost entirely of ecclesiastical bodies. By the sixteenth and seventeenth centuries the importance of corporations grew as industrialization spread. Municipalities, craft guilds, hospitals, and universities incorporated. Soon thereafter, massive business frauds and failures to perform duties (i.e., repair public bridges and roads) led to criminal prosecution of corporations for nonfeasance. By the mid-nineteenth century, English courts were willing to hold corporations criminally liable for wrongful acts as well as wrongful omissions. However, the courts drew a distinction at crimes of "immorality," since these required some proof of criminal intent. By the twentieth century, however, English courts had developed an "identification" doctrine by which corporations were prosecuted for crimes of intent. This doctrine merges the personalities of the corporation and its controlling individuals, and holds a corporation criminally liable for crimes committed by persons who "represent the directing mind and will of the corporate entity" (de Doelder and Tiedemann, p. 372).
In the North American colonies, the English Crown or Parliament granted the first corporate charters. After the colonies obtained freedom from England, state legislatures issued such grants. As in England, corporations initially were held criminally liable only for failure to comply with legal duties, then for wrongful acts under regulatory statutes that carried no mens rea requirement, and finally, for crimes of intent through use of anthropomorphic doctrines that identified an organization with individuals within the organization. Beyond these similarities, however, the American development of corporate criminal liability doctrines has been more complex, in part because of the dual state/federal judicial systems in the United States. Throughout the latter part of the twentieth century, two competing doctrines prevailed in the United States for holding organizations criminally liable: the Model Penal Code, section 2.01, which, like the English approach, holds an organization liable for the acts of certain leaders of the organization, and respondeat superior, which holds an organization criminally liable for the acts of any of its agents. The Model Penal Code approach has been adopted by a number of states; the respondeat superior approach is followed by the federal courts and some states.
American standards of corporate criminal liability
Both of the American standards for holding organizations criminally liable employ the "identification" approach pioneered in England. This approach imposes vicarious liability on an organization for the acts committed by agents of the organization. Respondeat superior is the broader of the two standards. It is a common law rule developed primarily in the American federal courts and adopted by some American state courts. Derived from agency principles in tort law, it provides that a corporation "may be held criminally liable for the acts of any of its agents [who] (1) commit a crime (2) within the scope of employment (3) with the intent to benefit the corporation." (Note, p. 1247). This standard is quite broad, permitting organizational liability for the act of any agent, even the lowest level employee.
The U.S. Supreme Court first recognized the respondeat superior standard as appropriate for imposing corporate criminal liability for intentional crimes in New York Central & Hudson River Railroad v. United States (1909). New York Central Railroad had been convicted of bribery because an assistant traffic manager gave "rebates" on railroad rates to certain railroad users. As a result of the rebates, the effective shipping rate for some users was less than mandated rates; this violated the Elkins Act, which imposed criminal sanctions. In affirming the conviction of New York Central the Supreme Court applied the respondeat superior standard, holding that since an agent of New York Central committed a crime while carrying out his duties, New York Central was liable. The Court applied this broad standard to New York Central with almost no analysis of whether respondeat superior was an appropriate standard for assessing criminal intent. The Court noted that the principle of respondeat superior was well established in civil tort law, then simply stated that "every reason in public policy" justified "go[ing] only a step farther" and applying respondeat superior to criminal law (p. 495). Other American courts have followed the lead of New York Central, stating: "There is no longer any distinction in essence between the civil and criminal liability of corporation, based upon the element of intent or wrongful purpose" (Egan v. United States, 137 F.2d 369, 379 (8th Cir.), cert. denied, 320 U.S. 788 (1943)).
New York Central and its progeny have been criticized as failing to appreciate the inherently different nature of civil and criminal liability, failing to consider civil alternatives to imposing corporate criminal liability, and failing to examine alternative standards for imposing criminal liability upon corporations.
Critics point to the fact that tort lawsuits are designed primarily to compensate one party for the damage caused by another party. The assumption underlying tort liability is that it is more equitable for the employer of the tort-feasor to absorb the financial loss caused by its agent's conduct than for the individual victim to do so. Except in rare tort cases, intent is not an issue in holding a corporation liable. There is no effort to assess corporate intent since even the most honorable corporation becomes liable simply because its agent engaged in certain conduct. Moreover, even though the threat of tort liability may deter conduct, collection of damages, not deterrence of future conduct, is the paramount concern of a tort action. Lastly, in all but unusual cases, tort liability carries no moral or punitive stigma; it is simply a cost of doing business.
In all criminal cases, however, intent, deterrence, and stigma are key ingredients. Intent to violate the law is an essential element of almost every crime. Criminal prosecutions are pursued precisely because of their deterrent impact. The stigma and shame of a criminal conviction, coupled with the disabilities a conviction carries, helps conveys this impact. In short, while the notion of respondeat superior is well suited to torts, it is anathema to the criminal law.
The second flaw regularly identified in New York Central is its failure to consider civil options to imposing criminal liability on corporations. The Court stated in New York Central that failure to impose criminal liability on corporations would "virtually take away the only means of effectually controlling the subject matter and correcting the abuses aimed at" (p. 496). This statement is inaccurate. There are two major options to imposing criminal liability on corporations: criminal liability of responsible individuals within the corporation, and civil remedies against the corporation. Granted, when the Court decided New York Central in 1909, prosecution of responsible corporate officials was unusual. Since then, however, such prosecutions have become more routine and much easier through the development of the "responsible corporate official" and strict liability doctrines. In addition, in 1909, administrative regulation and supervision was in its infancy. During the twentieth century, however, agencies grew dramatically in size, expertise, and power to regulate. Unfortunately, courts and legislatures have failed to reexamine the propriety of using respondeat superior to hold corporations criminally liable. As one court noted in affirming the conviction of a corporation, failure to impose criminal liability against the corporation "[was] to immunize the offender who really benefits and open wide the door for evasion" (United States v. George F. Fish, Inc., 154 F.2d 798 (2d Cir.), cert. denied, 328 U.S. 869 (1946), p. 801).
The third flaw highlighted in New York Central is the Court's failure to consider the conceptual alternatives to respondeat superior for imposing corporate criminal liability. In New York Central, the Court assumed that the only standard available for imposing corporate criminal liability was respondeat superior. Such a rigid view of its options is understandable given the posture of the case before the Court and the historical place of the opinion. However, in light of the considerable scholarship throughout the twentieth century identifying the problems with the respondeat superior approach and proposing alternative conceptual models, there is little reason to adhere to the overly simplistic choice facing the Court in 1909.
The Model Penal Code, section 2.01, remedies some of the problems of the respondeat superior standard because it more narrowly imposes corporate criminal liability. The Code approach more closely tracks the approach taken worldwide for imposing corporate criminal liability. The Code imposes corporate criminal liability only for the acts of some corporate agents. It provides that a corporation is criminally liable for criminal conduct that was "authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation with in the scope of his office or employment." A high managerial agent is anyone "having duties of such responsibility that [their] conduct may fairly be assumed to represent the policy of the corporation or association."
While praised as an improvement over respondeat superior's breadth, the Code standard has been criticized on several grounds. The first such criticism is that it is unrealistic, given the size of many modern corporations. Because illegal activities rarely are conducted openly, it would be difficult if not impossible to obtain the required proof that a high managerial agent conducted, or even recklessly tolerated, illegal activity. Second, the Code standard has been criticized because it encourages high managerial agents to avoid learning of wrongdoing within a corporation. Since the Code imposes corporate liability only if higher-level corporate officials are involved in or tolerate wrongdoing, a lack of knowledge of wrongdoing avoids liability under the Code. Lastly, the Code standard has been criticized as inappropriately narrow, since even if a clear corporate policy encouraged a lower echelon employee to commit an offense, the corporation is not liable unless there is evidence of participation or knowledge by a specific corporate director or high managerial agent.
Both the respondeat superior and the Code standards contain two requirements that could substantially limit their applicability and cure some of the problems they pose, but the courts have interpreted these requirements so broadly that they mean almost nothing. Both standards require that the illegal act be "within the scope of the agent's employment" and undertaken "for the benefit of the corporation" (p. 1247). Courts have interpreted "within the scope of employment" as applying to acts within an agent's apparent scope of employment. Under this broad interpretation even acts undertaken by a corporate employee contrary to specific corporate instructions have been held to warrant imposition of corporate criminal liability. The rationale for this view is that the agent's actions, taken while the agent is serving in the corporation's employ, would appear to outsiders to be within the agent's authority. United States v. Hilton Hotels Corporation, 467 F.2d 1000 (9th Cir. 1972), provides an example of this broad interpretation. The purchasing agent at Hilton Hotel in Portland, Oregon, threatened a supplier of goods with the loss of the hotel's business if the supplier did not contribute to an association formed to attract conventions to Portland. The corporate president testified that such action was contrary to corporate policy. Both the manager and assistant manager of the hotel testified that they specifically told the purchasing agent not to threaten suppliers. Nevertheless, the court convicted Hilton Hotel Corporation of antitrust violations under the respondeat superior standard because to outsiders, the assistant manager appeared to be acting on behalf of the corporation.
Although the respondeat superior test was applied in Hilton Hotels, the problem of the maverick employee arises even under the narrower Model Penal Code standard since the Code also relies on vicarious liability. Thus, for example, if the Hilton Hotel purchasing agent had "duties of such responsibility that his conduct may fairly be assumed to represent the policy of the corporation or association," the agent would be a "high managerial agent" (MPC § 2.01) and Hilton Hotels Corporation would be criminally liable.
Courts also have interpreted the second requirement, "with intent to benefit the corporation," almost out of existence. As one court noted, "[t]here have been many cases . . . in which the corporation is criminally liable even though no benefit [to the corporation] has been received in fact" (Standard Oil Co. v. United States, 307 F.2d 120 (5th Cir. 1962), p. 128). Courts have found this element of corporate criminal liability met, even when the corporation is a victim of its agent's act. United States v. Sun-Diamond Growers of California, 138 F.3d 961 (D.C. 1998), provides an example. Sun Diamond, a large agricultural cooperative owned by member cooperatives, was convicted of making illegal gifts to a public official, wire fraud, and making illegal campaign contributions. A vice president of Sun-Diamond made the improper payments and engaged in all of the illegal conduct. Sun-Diamond argued that its vice president did not act with intent to benefit Sun-Diamond, but with intent to defraud Sun-Diamond. Acknowledging that Sun-Diamond "look[ed] more like a victim than a perpetrator," the court nevertheless rejected Sun-Diamond's argument, finding that the jury could have concluded that the vice president acted with an intent, "however befuddled," to further his employer's interest (p. 970). The court explained its holding by noting the policy justification for holding corporations criminally liable for acts of their agents: "to increase incentives for corporations to monitor and prevent illegal employee conduct" (p. 971). This analysis is typical of judicial creation and application of corporate criminal liability. The court relied upon a utilitarian rationale with no discussion of whether corporate liability for crimes is consistent with principles of criminal law. Yet even if courts wanted to require stringent proof of "intent to benefit the corporation," it is unclear how they could. It seems impossible to apply literally. For example, if an employee takes bribes for favors to corporate customers, has the corporation benefited? If so, how do courts measure the benefit? Do the disadvantages, such as poor relationships with other customers, a criminal conviction, detrimental publicity, internal dissension, and poor morale, outweigh the benefit?
In addition to watered-down interpretations of "within the scope of employment" and "for the benefit of the corporation," adoption of the notion of "collective intent" has rendered the respondeat superior and Model Penal Code standards extremely broad. The doctrine of "collective intent" allows courts to find intent on the part of a corporation even when it is not possible to identify a corporate agent with criminal intent. United States v. Bank of New England, 821 F.2d 844 (1st Cir. 1987), demonstrates this. The Bank of New England was convicted of failing to file U.S. Treasury reports of cash transactions over $10,000. On thirty-one occasions, a bank customer withdrew more than $10,000 in cash from a single account by simultaneously presenting multiple checks in sums less than $10,000 to a single bank teller. Acknowledging that under applicable law a corporation's criminal intent is imputed from an agent's intent, the bank argued that it was not liable because there was no bank employee with sufficient criminal intent to violate the reporting requirements. According to the bank, the teller who conducted the transactions did not know that the law required the filing of the reports in the circumstance presented by the customer. And, the bank employee who knew of the reporting requirements did not know of the customer's transactions. Thus argued the bank, there was no single bank employee with sufficient mens rea to impute to the corporation. The trial court rejected the bank's argument because of the "collective intent" of bank employees. The court explained that "the bank's knowledge is the totality of what all of the employees know within the scope of their employment" (p. 855).
Critique of corporate criminal liability
Several arguments are made against recognizing corporate criminal liability. The most consistent argument is that corporate criminal liability is inconsistent with basic tenets of criminal law. A corollary argument is that using the criminal justice system inappropriately, by imposing corporate criminal liability, distorts, cheapens, and ultimately weakens the criminal justice system. Proponents of this view argue that corporate criminal liability is inconsistent with the criminal law in two respects. First, the current standards of corporate criminal liability, which are based upon principles of vicarious liability, are incompatible with the criminal law's requirement that an actor be held responsible only for its own action and intent. Since fictional entities have no intent, they are not suitable for criminal prosecution, and the subterfuge of imputing another actor's act and intent to the corporation (even that of a corporate agent) cannot substitute for this deficiency in proof. This argument also points to imprisonment as a defining characteristic of the criminal law and argues that since fictional entities cannot be imprisoned, corporate criminal liability is inappropriate.
A variety of arguments against corporate criminal liability concern the harm such liability poses to businesses. One argument is that the vague and broad standards of corporate criminal liability confer too much discretion in prosecutors, too little guidance to courts as to how to apply the standards, and too little notice to businesses as to how to avoid criminal liability. Another argument is that the broad standards for corporate criminal liability, along with aggressive use of expansive statutes such as money laundering and RICO (Racketeer Influenced and Corrupt Organizations Act), have led to "overcriminalization." Actions once handled administratively through dialogue between regulator and regulated are now prosecuted criminally. Overcriminalization has caused American businesses to expend resources on expensive internal policing efforts that, in turn, leaves American companies less competitive in a global business environment.
Another argument advanced against corporate criminal liability is that it is unclear whether imposing such liability does any good. In fact, argue some critics, criminal prosecution with its heavy penalties and dire consequences for the corporation and its employees may encourage cover-ups of illegal activity. These critics suggest that regulatory oversight with continuing dialogue between regulator and those regulated is more effective in detecting and deterring corporate misbehavior.
The last argument advanced against corporate criminal liability is that imposing it hurts innocent actors: the shareholders, who especially in the context of a large publicly held corporation are powerless to effect the conduct of corporate executives; bondholders and other creditors; employees; the community in which the corporation is located and that may be adversely affected by serious consequences imposed on the corporation; and consumers, who likely will pay higher prices because of the criminal penalties imposed. This argument is, of course, just as applicable to imposition of civil penalties as to criminal penalties.
The major argument offered for corporate criminal liability is utilitarian: corporations are major actors in today's world and crime cannot be fought effectively without tools to pursue all major actors. A corollary argument is that allowing corporations to engage in criminal activity gives illegal corporations a competitive edge over law-abiding corporations. This, in turn, distorts and undermines market forces in a capitalist economy. This view is based upon the belief that criminal prosecution of corporations can change corporate behavior. Advocates of corporate criminal liability suggest that corporate behavior can be altered in two ways by criminal prosecutions. First, general deterrence of similar behavior by many corporations is achieved through publicity about corporate prosecutions. Second, options for sentencing convicted corporations, such as probation, which requires implementation of an effective corporate compliance plan, forces changes within a corporation.
The obvious alternative to corporate criminal liability is prosecution of culpable individuals within an organization. Proponents of corporate criminal liability argue that this alternative is inadequate because it is not always possible to identify the responsible individuals within a large organization; individuals are fungible and can be replaced by others who are willing to break the law; individuals are more likely than organizations to be judgment-proof and thus immune to financial penalties that accompany criminal liability and deter future unlawful conduct.
Most proponents of corporate criminal liability acknowledge many of the problems identified with the manner in which corporate criminal liability is imposed and urge adoption of a more appropriate standard for assessing such liability. These commentators agree that the problem with all current standards of corporate criminal liability is their reliance on vicarious liability, which is inconsistent with criminal law's focus on personal guilt through one's own conduct and intent. They argue that corporate criminal liability should hinge on an organization's own conduct and intent. Many commentators have suggested models for assessing corporate criminal liability. One view is that corporate criminal liability should not be imposed until an organization's "intent" is proven. Such proof would focus on corporate policies and procedures such as the effectiveness of corporate hierarchy in monitoring activities of employees; corporate goals; education and monitoring programs for employees; an organization's reaction to past violations and violators; and an organization's compensation incentives for legally appropriate behavior. This suggested approach is similar to that taken in the U.S. Sentencing Guidelines for assessing the culpability of a convicted organization about to be sentenced.
Another proposal focuses on a corporation's response to a violation of the law by corporate agents. Termed reactive corporate fault, this approach examines the corporate reaction after the crime is brought to the attention of the policy-making officials within the corporation. Although this approach provides a conceptual paradigm for measuring corporate intent, it measures it only after the criminal conduct has occurred. This is a problem since the relevant time to measure intent for any crime is at the time the offense was committed.
Another conceptual approach toward corporate criminal liability that respected scholars have advocated for years is a due diligence defense. The Netherlands and some American courts currently permit such a defense. A due diligence defense allows a corporation, otherwise criminally liable, to show that it exercised due diligence to prevent the crime. Presumably corporate policies and procedures existing at the time of the offense, such as the presence of a corporate compliance plan, would be relevant in assessing due diligence. The weakness in this approach is that it becomes available only after a corporation has been found liable under the inappropriately broad vicarious liability standard.
Procedural rights of corporate defendants
Corporate defendants in the United States, like individual defendants, enjoy certain protections available only in the criminal context: the right to have all elements of the offense proven beyond a reasonable doubt instead of by a preponderance of the evidence; the right to indictment by a grand jury; the right to trial by jury; the right to confront adverse witnesses; freedom from double jeopardy; and the right to effective counsel. Of these, the burden of proof and the right to jury trial may be the most significant. Proof of most complex crimes, which will be the bulk of crimes charged against a corporation, are difficult to prove. Requiring proof beyond a reasonable doubt will be difficult and likely will dissuade prosecutors from proceeding in many cases. Trial by jury presumably means that a jury must understand the charges before they convict. Clarifying a corporation's role in a complex crime may not be feasible and should lead to acquittal. In addition, juries may not approve of the broad standards of corporate criminal liability; jury nullification is a possibility.
Corporations do not enjoy what is perhaps the most significant right belonging to defendants in the American criminal justice system. They do not have the right not to incriminate themselves. Considering that most statements against corporate interest will be made by corporate agents over whom a corporation may have little control, the inability to assert this right is a serious disability for the corporate defendant.
A practical problem in prosecuting corporations for crimes is what to do with them after conviction. Options include cash fines and forfeiture of proceeds of the criminal activity or property used to commit the offense; compensation to victims; public acknowledgment of wrongdoing; community service; appointment of a trustee to supervise some or all of the convicted corporation's affairs; required implementation of a corporate compliance plan; revocation of business licenses; debarment from conducting future business with the government or other entities; revocation of the corporate charter (the corporate equivalent of a "death penalty"); and probation, through which some of the above options may be implemented.
In 1991, the U.S. Sentencing Commission implemented sentencing guidelines for organizations. The guidelines are based upon the following four principles: a convicted organization should remedy any harm caused by the offense; if the organization "operated primarily for a criminal purpose or primarily by criminal means, the fine should be set sufficiently high to divest the organization of all of its assets"; the fine for any other organization should be based upon its conduct and culpability; and, probation is appropriate "when needed to ensure that another sanction will be fully implemented, or to ensure that steps will be taken within the organization to reduce the likelihood of future criminal conduct" (U.S. Sentencing Guidelines Manual, chap. 8, Introductory Commentary).
One of the more innovative aspects of the Sentencing Guidelines is the effort to describe an organization's "culpability." For most organizations (those not operated primarily for a criminal purpose or primarily by criminal means), the fine assessed upon conviction will depend, in part, upon the organization's culpability. A court is to examine the following factors to assess such culpability: involvement in or tolerance of criminal activity; prior regulatory and criminal history; violation of a judicial order; obstruction of justice during the investigation; installation of an effective program to prevent and detect violations of the law; self-reporting, cooperation; and acceptance of responsibility. In essence, the Sentencing Commission has provided a model for judging corporate intent.
Experts identify at least two potential side-effects of the Sentencing Guidelines. First, the guidelines may be partially responsible for the increase in prosecutions of organizations. From 1995, when the impact of the Sentencing Guidelines was just being felt, to 1998, there was a 197 percent increase in U.S. federal courts in convictions of organizations. Although the guidelines are intended to apply after conviction, they provide a model for assessing organizational culpability. This clarifies the law of corporate criminal liability for prosecutors and courts. The guidelines also make meaningful sentences more likely, which, in turn, gives prosecutors an incentive to pursue corporate offenders. Second, the guidelines have made it imperative that corporations have meaningful corporate compliance plans. The existence of such a plan affects an organization's culpability score under the guidelines, thereby reducing any criminal fine by as much as 400 percent.
There is global discord on whether corporations should be held criminally liable. The jurisprudential and practical problems in imposing criminal liability on fictional entities ferment this disagreement. The arguments against imposing such liability focus on its incompatibility with the criminal justice system; the hardship such liability, especially under the broad vicarious liability standards employed, causes for businesses; and the unfairness of punishing innocent actors, such as shareholders and creditors, when corporate criminal liability is imposed. The arguments in favor of corporate criminal liability focus on the major role corporations play in today's world; the corrupting influence of corporate crime; and the ineffectiveness of alternatives such as prosecuting individuals involved or pursuing civil remedies. The existing standards for assessing corporate criminal liability are universally criticized as simplistic, unrealistic, and inconsistent with fundamental tenets of criminal law. These standards rely upon vicarious liability and hold a corporation liable by imputing the actions and intent of a corporate agent to the corporation.
Change is likely in the years ahead for there is growing support, worldwide, for imposing corporate criminal liability. It is likely, however, that the anthropomorphic standards currently employed to assess corporate criminal liability will evolve into more sophisticated standards that assess corporate culpability.
Pamela H. Bucy
See also Civil and Criminal Divide; Economic Crime: Antitrust Offenses; Economic Crime: Tax Offenses; Economic Crime: Theory; Strict Liability; Vicarious Liability; White-Collar Crime: History of an Idea.
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