Thursday, October 1, 2009
Peter J. Henning (Wayne State University Law School) has posted Corporate Criminal Liability and the Potential for Rehabilitation (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Much has been made about prosecutorial unfairness in treating corporations, that some multibillion dollar enterprises have been bullied by the Department of Justice to cooperate with the government by acknowledging guilt and then turning over records and employee statements regardless of guilt or innocence. Despite the repeated criticisms of corporate criminal liability, it is a staple of the criminal law in the United States, and unlikely to leave the scene any time soon. Indeed, it is growing outside the United States as a means of policing corporate misconduct. In this Essay, I focus on two issues that seem relevant to the current discussion about the scope of corporate criminal liability: first, is there a justification for applying the criminal law to a corporation or other type of business organization? While there is at least the possibility of deterring an individual from undertaking criminal conduct again by imposing punishment on the person, and society can exact retribution from the law-breaker to vindicate its interests and those of the victim, these rationales for punishment do not work well for organizations that do not act through the same individuals and will continue to exist even if individual miscreants are removed. Second, if specific deterrence or retribution are at best weak justifications for punishing corporations, is there a workable rationale for using criminal laws rather than civil regulatory actions against organizations? I argue in this Essay that the current trend toward using deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) to resolve criminal investigations of corporations highlight the proper focus on rehabilitation of the organization as the proper goal of the application of the criminal law to corporations.