STRUCTURAL CRIME AND INSTITUTIONAL REHABILITATION - A NEW APPROACH TO CORPORATE SENTENCING

• NCJ Number: 65950
• Journal: Yale Law Journal Volume: 89 Issue: 2 Dated: (DECEMBER 1979) Pages: 353-375
• Author(s): ANON
• Date Published: 1979
• Length: 23 pages
• Corporate Author: Yale Law Journal
• Sale Source: Fred B Rothman & Co; Institute for Scientific Information
• Language: English
• Country: United States of America
• Note: PRICE QUOTED FOR FRED B. ROTHMAN IS A SINGLE ISSUE PRICE.

Annotation

BECAUSE FINES IN CORPORATE SENTENCING FAIL TO TAKE ACCOUNT OF SIGNIFICANT QUALITIES OF INSTITUTIONAL CRIME, AND THEREBY FRUSTRATE GOALS OF CORPORATE LIABILITY, A NEW APPROACH TO CORPORATE SENTENCING IS CALLED FOR.

Abstract

LARGE CORPORATIONS HAVE AN INHERENT ORGANIZATIONAL COMPLEXITY THAT TENDS TO DIFFUSE AND TO OBSCURE INDIVIDUAL RESPONSIBILITY FOR CORPORATE ACTIONS. THIS COMPLEXITY GIVES RISE TO THE POSSIBILITY OF A CORPORATION COMMITTING 'STRUCTURAL CRIMES,' THAT IS A CORPORATION COMMITS OFFENSES BUT NO CRIMINALLY CULPABLE INDIVIDUAL CAN BE IDENTIFIED. THE OCCURRENCE OF A STRUCTURAL CRIME MAY REFLECT EITHER OF TWO UNDERLYING PATTERNS: (1) NO INDIVIDUAL CAN BE CONVICTED BECAUSE NO ONE HAS ACTED OR FAILED TO ACT IN SUCH A MANNER THAT PERSONAL CRIMINAL LIABILITY IS WARRANTED, OR (2) NO INDIVIDUAL OFFICIALS CAN BE CONVICTED AS GUILTY OF THE ELEMENTS OF BAD FAITH OR INTENTIONAL MISCONDUCT BY SOME. BECAUSE OF THESE UNIQUE CHARACTERISTICS OF STRUCTURAL CRIME, SENTENCES MUST BE REDEFINED TO APPLY TO CORPORATIONS. SINCE ENTITIES CANNOT BE PUNISHED, RETRIBUTION MUST BE DIRECTED ONLY AT INDIVIDUALLY CULPABLE PARTIES. IN ADDITION, DETERRENCE OF CORPORATE CRIME REQUIRES THAT SENTENCES IMPOSE BURDENS ON MANAGERS WHOSE DEPARTMENTS GENERATE CRIMES AND THAT THE BURDENS BE SUFFICIENTLY UNPLEASANT TO OUTWEIGH INCENTIVES TO COMMIT CRIME. REHABILITATION SHOULD BE A CRUCIAL SENTENCING OBJECTIVE AND REQUIRES THAT A CORPORATION'S INTERNAL OPERATONS AND PROCEDURES BE RESTRUCTURED TO FOSTER FUTURE COMPLIANCE WITH THE LAW. AN ALTERNATIVE SENTENCE, THEN, IS JUDICIAL INTERVENTION THROUGH CORPORATE PROBATION OR JUDICIALLY ORDERED RESTRUCTURING OF LIMITED, DISCRETE CORPORATE DECISIONMAKING PROCEDURES IMPOSED AS PROBATION CONDITIONS. SUCH A SENTENCE WOULD BE FLEXIBLE AND HAVE THE POTENTIAL EFFECTIVENESS OF EXTENSIVE ORGANIZATION REFORMS THAT COURTS HAVE APPLIED TO A NUMBER OF PUBLIC INSTITUTIONS. ISSUES REGARDING WHEN CORPORATE PROBATION WOULD BE APPROPRIATE, HOW TO IMPLEMENT SUCH PROBATION, AND WHAT CONDITIONS TO IMPOSE ARE DISCUSSED BRIEFLY. CASE LAW IS CITED, AND NOTES ARE PROVIDED. (PRG)