Tuesday, September 21, 2021
Miriam H. Baer (Brooklyn Law School) has posted The Information Shortfalls of Prosecuting Irresponsible Executives (DePaul Law Review, Forthcoming) on SSRN. Here is the abstract:
This Essay, written for the 2020 Clifford Symposium on Tort Law and Social Policy, focuses on the prosecution and conviction of three corporate executives under the responsible corporate officer (RCO) doctrine in connection with Purdue Pharma’s misbranding of OxyContin. The RCO doctrine relieves prosecutors of having to demonstrate a difficult-to-prove mental state such as purpose or knowledge and instead holds corporate officers criminally responsible for certain violations that take place on their watch. Although Purdue Pharma’s three executives suffered economic consequences from their 2007 convictions, they received no term of imprisonment. This result elicited a fair amount of criticism, which intensified after an internal report surfaced indicating career prosecutors would have preferred more serious charges.
Critics deride plea bargaining because it places unfair pressures on defendants and deprives them of relevant information. Less attention has been paid to the formal charging instrument, the criminal Information (itself the product of a plea bargain), which deprives the general public of crucial information, even as is filed in court and freely accessible to the public. This Essay aims to remedy this gap by focusing attention on criminal charging documents that deliberately paint a sanitized and incomplete portrait of wrongdoing. This information-dampening dynamic poses greatest risks for the so-called “public welfare offense,” a category of crimes that arise in highly regulated settings and are often used to prosecute mid and high-level corporate executives.
Relying on strict theories of liability, the public welfare offense purports to deter and incapacitate actors whose actions or omissions threaten the public’s safety. In precisely these cases, information-generation ought to be the government’s strongest priority. The public cannot protect itself from diffuse harms if it misunderstands their severity or scope; nor can it adequately oversee the public officials tasked with redressing these harms. Regrettably, however, the very feature that enables the government to convict high-level executives of public welfare offenses—the RCO doctrine—simultaneously generates opaque charging documents that fail to say what exactly the offenders did, said, or knew. That is the paradox of executive criminal liability: doctrines and laws designed to ease the government’s burden also weaken its information-producing function. As a result, the public learns too little, and too late, about practices that threaten its long-term health and welfare. After examining this dynamic and its relationship to the Purdue Pharma prosecutions, this Essay surveys several reforms and their corresponding tradeoffs.