The use of criminal sanctions against corporations is well established, but the practice has recently come under fire from legal theorists who maintain that corporations should be held civilly rather than criminally liable for wrongdoing. Civil liability, these theorists argue, shares important features with criminal liability: both impose punishment on a company, the government: the greater procedural protections of criminal law make deterrence through criminal prosecution extremely expensive.
Even if it is less economical, however, criminal liability is a much stronger deterrent. The considerable enforcement powers involved, including the ability to detain and question corporate officials, are themselves significant deterrents. Furthermore, the fact that private civil litigation requires an identifiable victim with the necessary resources to commence litigation weakens its society forcefully rejects such conduct. Civil liability is ill suited for this purpose.
Other legal theorists who do not object to criminal sanctions per se argue that individuals within corporations, rather than corporations themselves, are the appropriate target of criminal prosecution in cases involving corporate wrongdoing. They maintain that individuals within corporations are more responsive to deterrence because they generally fear prosecution and the loss be laid off, and ultimately the public, which is forced to absorb higher prices.
However, this approach is also misguided. Corporations often bury responsibility within complex hierarchies, with the result that no individual responsible for corporate misdeeds can be identified. Another problem is that under this approach, a corporation will often find it cheaper to designate and compensate an internal scapegoat to face prosecution than to by the greater societal interest in ensuring the safety of employees, the public, and the environment.
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If the author could write the script, what would the ideal response to corporate wrongdoing look like? Criminal prosecution of the CORPORATION. Conviction. Stigma detonates. Shareholders see their stock cratering and demand reform from within. That is the author's deterrence dream. Any answer featuring civil suits, executive prosecutions, or press conferences falls outside the author's playbook.
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