The authors of many of the articles in this symposium are specialists in corporate and white collar crime. Since I am not, I hope to bring an outsider's perspective to some key issues and common assumptions. My thesis is that many of the criticisms leveled against corporate criminal liability are not unique. (1) Rather, they are examples of problems that are common in the federal criminal justice system. These issues should be taken very seriously, but in analyzing them and considering solutions it is important not to focus exclusively on corporations as defendants, or even white collar defendants in general. When skillful well-funded advocates raise these issues in the context of corporate criminality it provides an important opportunity. The critique of corporate criminality sheds light on issues that are too easily ignored when they affect only individuals and groups that have few advocates and little political or economic power. Broadening the scope of the enquiry reveals that the problems highlighted by the critics of corporate and white collar liability are often most severe in other contexts, so that the case for overall reform is stronger, rather than weaker, than the case for reform limited to corporate or white collar cases and defendants.
The criticisms that fit this mold (2) run as follows. First, it is said that federal criminal law has run amok. The federal code is not a unified code in any meaningful sense, but more of an overstuffed grab bag. Nobody even knows exactly how many federal offenses there are, but it's clear that federal criminal law has expanded to include a plethora of regulatory matters that simply don't belong in the criminal arena. Civil or regulatory treatment is sufficient, and anything more is overkill. Second, the main standard of liability is overbroad; criminal liability can be imposed on corporations when there's no true fault. Arguably, even the Department of Justice recognizes this problem in its prosecutorial guidelines and policies. Third, federal sentences for white collar and regulatory offenses are far too harsh. Heavy collateral costs are imposed on third parties, such as employees and shareholders. Last, federal prosecutors wield too much power. Corporate defendants can't, realistically, fight criminal charges. If prosecution is threatened, they have no choice but to waive all of their rights and comply with the government's demands, which require them to become agents in developing the case against individual corporate officials. The bottom line is that good companies and good people are being tarred as criminals and treated disgracefully. In essence, what's bad for GM--and the rest of corporate America--is bad for the nation.
In assessing these arguments, I will focus on federal criminal law, though some states have also expanded the statutory basis for corporate criminal liability. (3) I agree that federal criminal law is indeed overbroad in two senses: there are too many federal offenses covering too much conduct, and many individual offenses are overbroad and badly drafted. This has many negative consequences, and it should be a cause for concern. But these consequences are felt throughout the system, not merely by corporate and white collar defendants. These problems point to the urgent need for overall reform and revision of the federal criminal laws, including a reduction in the number of federal crimes, and careful--and clear--redrafting of individual offenses across the board. Nor is there anything unique about the fact that the Department does not enforce corporate criminal liability as broadly as many federal statutes would permit, or that as a matter of policy the Department restricts liability. This is the inevitable consequence of the current breadth of the federal criminal code, which now covers, in one way or another, nearly all of the offenses covered by state criminal law.
It is also true that liability can be imposed on corporations for the actions of corporate employees, even in the absence of specific proof of corporate fault. …