Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

a fault in the way the entity manages itself (Betriebsfuehrungsschuld). This kind of fault can be understood by analogy, it is argued, with the fault of individuals who commit rape and murder. 44

But the analogy is strained. The management faults of corporations are generally faults of omission--not of a choice to do evil. It might be appropriate to punish them for these faults for if they choose to do business and receive the protection of the legal order, they must take steps to avoid causing criminal harm. They have a duty to manage themselves in the interests of society, but this duty departs from the moral foundations of the criminal law.

The movement toward corporate criminal liability reflects a tendency to blur the lines between criminal and civil [private] legal liability. Modern societies may be losing their sense for criminal punishment as an imperative of justice. The tendency at the close of the twentieth century is to focus not on the necessity that the guilty atone but on the pragmatic utility of using criminal sanctions to influence social behavior. Therefore, the argument that corporations are not really guilty of crime carries less and less weight. The more convincing consideration is the social utility of disciplining corporate behavior with the tools of the criminal law.


Notes
1.
In Hebrew: ain schlichut bavirah.
2.
See Cramer in Schönke/Schröder, § 25, note 45.
3.
Cal. Penal Code 31.
4.
StGB § 27(2). The mitigation is obligatory (Die Strafe... ist zu mildern) [the punishment is to be reduced]. In the case of attempts, the mitigation is discretionary. StGB § 23(2) (Der Versuch kann milder bestraft werden) [an attempt can be punished more mildly].
5.
Quill v. Vaco, 80 F.3d 716 (2d Cir. 1996); Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc).
6.
The statutes in question generally punished both assisting and "driving" others to commit suicide. The constitutional challenge was directed only at the former clause.
7.
The Federal Sentencing Guidelines recognize that a convicted defendant's punishment should be reduced for being a "minimal participant in any criminal activity." It is reduced less for being a "minor participant." See Federal Sentencing Guidelines § 3B1.2.
8.
Note the switch in terminology. In private law, the "principal" is the person behind the scenes; the agent is the one who actually enters into the contract. In criminal law, the perpetrator, sometimes called the "principal," is the one who executes the deed at the scene.
9.
StGB §29 ("Every participant must be punished according to his personal culpability without regard to the culpability of others.").
10.
Recall the assessment of punitive damages in tort cases against Bernhard Goetz (43 million dollars), see chap. 4, note 15 supra, and O. J. Simpson

-203-

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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