Criminal Liability for Life-Endangering Corporate Conduct
Spurgeon, W. Allen, Fagan, Terence P., Journal of Criminal Law and Criminology
Business corporations supply modern society with the necessities and comforts of life. Benefiting from the collective capital of many shareholders and laws favoring the artificial business entity, corporations are uniquely able to provide goods and services to the public. Corporations produce our transportation vehicles, process the food we eat, construct the buildings in which we live and work, and make a myriad of goods we use everyday. The manufacturing process provides employment and also profoundly affects our environment. Corporations are thus an essential element of modern life.
While corporations have dramatically improved the United States' standard of living, this progress has not been without social costs. Some corporate activity endangers life itself. Unsafe cars, drugs, and food additives endanger the health of consumers. Hazardous working conditions and toxic chemicals used in the manufacturing process pose life and health risks to industrial workers. Water and air pollution and the dumping of toxic chemicals threaten public health.
Such simultaneous beneficial and detrimental aspects of corporate conduct present lawmakers with the challenge of curtailing socially harmful activity without stifling the industrial process. Criminal law may operate as one device to restrain corporations from engaging in unreasonably harmful conduct. In the most recent attempt to codify and reform the Federal Criminal Code, (1) the Senate Judiciary Committee included an offense which would have punished conduct, manifesting an extreme indifference to or an unjustified disregard for human life, which knowingly places human life in imminent danger of death.
Because criminal law represents society's moral condemnation of certain activity, such an endangerment offense will most effectively deter corporate behavior if society casts moral blame upon life-endangering conduct. When corporate activity imperils human life to a degree substantially greater than the societal benefits it confers, that activity becomes morally blameworthy and properly subject to criminal sanctions. Even though conduct may be morally condemnable, criminal sanctions should be invoked only when the threat of punishment will deter behavior or fulfill a retributive function. Even though the corporate form reduces their impact, criminal sanctions do serve as a deterrent. Thus, an endangerment offense providing added criminal liability would provide corporations with an incentive to conform to social norms.
This article will analyze both the efficacy of utilizing criminal law to shape corporate behavior and the specific provisions of the proposed endangerment offense. Part I establishes the existence of socially harmful corporate conduct and the need for government regulation. This section will also elaborate the history and provisions of the endangerment offense. Part II considers whether corporate life-endangering conduct is morally blameworthy so as to be properly subject to criminal sanctions and whether punishing such conduct would have a different impact. This section attempts to illustrate some of the social policy problems associated with criminalizing some life-endangering activity. While Part II focuses on theoretical and policy questions, Part III discusses the implementation of criminal sanctions in a practical context. It analyzes the actual deterrent effect of inflicting criminal penalties on a corporation and its employees. Finally, Part III briefly considers whether the Senate Judiciary Committee's construction of the endangerment statute would reach most morally blameworthy and socially harmful conduct.
I. LIFE ENDANGERING ACTIVITY AND PROPOSED FEDERAL LEGISLATION
A. SOCIALLY HARMFUL CORPORATE ACTIVITY
As noted above, while corporations are responsible for the technological advancement of society, corporate activity also imposes serious social costs. In recent decades, these costs, in the form of deleterious effects on the public health, safety, and welfare, have become increasingly apparent. …