Corporate Criminal Responsibility - History, American Standards Of Corporate Criminal Liability, Critique Of Corporate Criminal Liability, Procedural Rights Of Corporate Defendants
crime fictional economic entities
Criminal prosecutions of corporations and other fictional entities have occurred routinely in the United Kingdom since the nineteenth century and in the United States since the beginning of the twentieth century. During the later portion of the twentieth century the Netherlands, Canada, and France enacted standards for holding fictional entities criminally liable. Elsewhere in the world, legislative bodies and courts are being urged to recognize corporate criminal liability by advocates who point to the major role played by organizations in modern day life and argue that active prosecution of organizations is essential to effective crime control efforts. Even so, because of theoretical and practical problems in prosecuting fictional entities, corporate criminal liability is controversial. The debate centers on the issues of how to measure a fictional entity's liability, how to sanction a fictional entity, and whether criminal prosecution of organizations is effective.
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By the fourteenth century, fictional entities were well recognized in English law. These early corporations were created by grants from the Crown or Parliament and consisted almost entirely of ecclesiastical bodies. By the sixteenth and seventeenth centuries the importance of corporations grew as industrialization spread. Municipalities, craft guilds, hospitals, and universities incorporated. Soon…
Both of the American standards for holding organizations criminally liable employ the "identification" approach pioneered in England. This approach imposes vicarious liability on an organization for the acts committed by agents of the organization. Respondeat superior is the broader of the two standards. It is a common law rule developed primarily in the American federal courts and a…
Several arguments are made against recognizing corporate criminal liability. The most consistent argument is that corporate criminal liability is inconsistent with basic tenets of criminal law. A corollary argument is that using the criminal justice system inappropriately, by imposing corporate criminal liability, distorts, cheapens, and ultimately weakens the criminal justice system. Proponents o…
Corporate defendants in the United States, like individual defendants, enjoy certain protections available only in the criminal context: the right to have all elements of the offense proven beyond a reasonable doubt instead of by a preponderance of the evidence; the right to indictment by a grand jury; the right to trial by jury; the right to confront adverse witnesses; freedom from double jeopard…
A practical problem in prosecuting corporations for crimes is what to do with them after conviction. Options include cash fines and forfeiture of proceeds of the criminal activity or property used to commit the offense; compensation to victims; public acknowledgment of wrongdoing; community service; appointment of a trustee to supervise some or all of the convicted corporation's affairs; re…
There is global discord on whether corporations should be held criminally liable. The jurisprudential and practical problems in imposing criminal liability on fictional entities ferment this disagreement. The arguments against imposing such liability focus on its incompatibility with the criminal justice system; the hardship such liability, especially under the broad vicarious liability standards …
American Law Institute. Model Penal Code: Proposed Official Draft. Philadelphia, Pa..: ALI, 1962. ——. "Corporate Criminal Accountability: A Brief History and an Observation." Washington University Law Quarterly 60, no. 2 (1982): 393–423. ——. "Organizational Sentencing Guidelines: The Cart Before the Horse." Washington University Law Qu…
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