NCJ Number
63777
Journal
Harvard Law Review Volume: 92 Issue: 6 Dated: (APRIL 1979) Pages: 1227-1375
Date Published
1979
Length
149 pages
Annotation
THE PROBLEMS CREATED BY THE FEDERAL GOVERNMENT'S RELIANCE ON THE DETERRENT EFFECT OF CRIMINAL LAW TO CONTROL CORPORATE ACTIVITIES ARE DISCUSSED; LEGAL REFORMS ARE SUGGESTED.
Abstract
ALTHOUGH THE FEDERAL GOVERNMENT HAS GREATLY INCREASED THE NUMBER OF CIVIL REGULATIONS WHICH CONTROL CORPORATE ACTIVITIES, DURING THE 1970'S THE GOVERNMENT ALSO AUGMENTED ITS POWER TO PUNISH CORPORATIONS THROUGH THE USE OF CRIMINAL SANCTIONS. SEVERAL PROBLEMS EXIST CONCERNING THE APPLICATION OF CRIMINAL STATUTES TO CORPORATE ENTITIES, INCLUDING THE DEVIATION FROM THE GENERAL CRIMINAL INTENT (MENS REA) MODEL OF THE CRIMINAL LAW. ENFORCEMENT OF THE CRIMINAL CODE AGAINST CORPORATIONS IS DIFFICULT BECAUSE OF THE DEFENDANTS' INVOCATION OF THE PROCEDURAL PROTECTIONS AGAINST SELF-INCRIMINATION AND THE PROHIBITIONS AGAINST UNREASONABLE SEIZURES OF EVIDENCE. THE DUPLICATIVE OR EVEN CONTRADICTORY PROVISIONS OF THE CIVIL AND CRIMINAL CODES DIMINISH THE COHERENCE OF REGULATORY EFFORTS AND IMPEDE THE ACHIEVEMENT OF GOVERNMENT OBJECTIVES. THE OCCURRENCE OF PARALLEL CIVIL AND CRIMINAL PROCEEDINGS CREATES ADDITIONAL PROBLEMS, SUCH AS WHEN AN ADMINISTRATIVE AGENCY SEEKS ACCESS TO GRAND JURY INFORMATION OR, CONVERSELY, WHEN A CIVIL SUMMONS IS USED TO OBTAIN EVIDENCE FOR A CRIMINAL PROSECUTION. DIFFERENCES IN TRIAL PROCEDURE COMPEL COURTS TO SEPARATE THE CIVIL AND CRIMINAL PROCEEDINGS DESPITE SUBSTANTIVE SIMILARITIES BETWEEN THE PENALTIES FOR CORPORATE MISCONDUCT. THE INABILITY TO IMPRISON A CORPORATION AND THE DOUBTFUL EFFECT OF CRIMINAL STIGMA ON SUCH AN ENTITY OFTEN LEAD TO THE PROSECUTION OF EMPLOYEES OR OFFICERS OF THE CORPORATION. HOWEVER, THE CONCENTRATION OF PROSECUTION ON INDIVIDUALS HEIGHTENS THE CONCERN OVER THE MODIFICATION OF THE REQUIREMENTS FOR PROVING CRIMINAL INTENT. ALTHOUGH THE RATIONALE OF DETERRING SERIOUS SOCIAL HARM CONSTITUTIONALLY PERMITS HOLDING CORPORATIONS STRICTLY LIABLE FOR THEIR CRIMES, COURTS AND LEGISLATURES WILL LIKELY CONTINUE TO REQUIRE CORPORATIONS TO BE 'BLAMEWORTHY' (ACTING WITHOUT REASONABLENESS), IN ORDER TO BE HELD CRIMINALLY LIABLE. CRIMINAL DETERMINATIONS MAY HAVE BINDING EFFECTS IN SUBSEQUENT LITIGATION THROUGH RULES WHICH PROHIBIT RELITIGATION OF ISSUES. COLLATERAL CONSEQUENCES MAY AFFECT THE CORPORATION, THE STOCKHOLDERS, AND THE GOVERNMENTAL AGENCIES. AN EVALUATION OF THE USE OF CRIMINAL PENALTIES ON CORPORATIONS INDICATES THAT RELIANCE ON CIVIL FINES WOULD REDUCE THE UNFAIRNESS BROUGHT ABOUT BY ARBITRARILY ATTACHING THE CRIMINAL LABEL TO CORPORATIONS AND THEIR PERSONNEL. FOOTNOTES ARE PROVIDED.