Corporate Criminal Liability for Homicide: A Statutory Framework
Harlow, James W., Duke Law Journal
Since the nineteenth century, judges, legislators, prosecutors, and academics have grappled with how best to accommodate within the criminal law corporations whose conduct causes the death of others. The result of this debate was a gradual legal evolution towards acceptance of corporate criminal liability for homicide. But, as this Note argues, the underlying legal framework for such liability is ill fitting and largely ineffective. Given the public benefit that would accrue from a clearly defined and potent liability scheme, this Note proposes a model criminal statute that would hold corporations directly liable for homicide. The proposed statute draws upon basic precepts of corporate criminal liability, as well as legislative developments in the United Kingdom and the insights of organizational theory. Ultimately, this Note argues that a statutory scheme would allow prosecutions of corporations for homicide to proceed more accurately, effectively, and fairly.
On April 5, 2010, an explosion ripped through the Upper Big Branch coal mine in West Virginia, claiming the lives of twenty-nine miners. (1) A report commissioned by West Virginia's governor determined that the explosion was caused by the ignition of methane and coal dust, which had built up in the mine due to insufficient ventilation and malfunctioning water-spray systems. (2) From June 2006 to April 2010, federal officials had cited Performance Coal Company, a subsidiary of Massey Energy and the owner of the Upper Big Branch mine, hundreds of times for serious safety violations. (3) In fourteen of the fifteen months leading up the explosion, the Upper Big Branch mine received citations related to its handling of coal dust--a primary cause of the April 5th explosion. (4) Despite these repeated safety violations, Upper Big Branch management did not implement an effective compliance program, instead adopting a "catch me if you can" mentality toward regulation. (5)
In April 2010, an explosion and fire on the Deepwater Horizon oil rig in the Gulf of Mexico claimed eleven lives. (6) A presidential investigatory commission found that the explosion resulted from a failure to properly seal off the well and contain the enormous pressures that had built up inside. (7) The commission also determined that the root causes of the explosion could "be traced back to underlying failures of management and communication" by BP-formerly British Petroleum--who, along with its partners, owned and operated the rig. (8) For example, BP engineers had continued to revise the procedure for sealing the well until hours before the explosion without a full risk assessment. (9) Furthermore, prior to the explosion, rig workers had worried about safe practices taking a back seat to drilling operations and about their inability to communicate their concerns to senior managers ashore. (10) Transocean, the company that operated the rig, left the crew in the dark about an "eerily similar near-miss" that took place on another rig a few months before the Deepwater Horizon explosion. (11)
Between June and November of 2010, six residents at North Carolina's Glen Care assisted-living center died after being infected with hepatitis B during blood-sugar checks by facility staff. (12) Upon investigation, state health inspectors found that the staff were generally untrained in disease prevention and had reused improperly sterilized equipment to check the residents' glucose levels--both of which constituted regulatory violations. (13) Although the center's management had known that precautionary training was required by state law and had offered training sessions for staff members, (14) management had failed to ensure that all of the staff members had received the necessary instruction. (15)
Each of the above examples illustrates a common flaw in the relationship between a corporation (16) and its employees or the consumers of its products. …