Wednesday, June 14, 2017
Kenneth W. Simons (University of California, Irvine School of Law) has posted Can Strict Criminal Liability for Responsible Corporate Officers Be Justified by the Duty to Use Extraordinary Care? (Criminal Law and Philosophy, 2017, Forthcoming) on SSRN. Here is the abstract:
The responsible corporate officer (RCO) doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is it consistent with retributive principles when strict liability pertains, not to grading, but to whether defendant has crossed the threshold from noncriminal to criminal conduct?
In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm.
Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of negligence, and none of them sufficiently explains and justifies the RCO doctrine.