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.
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.
In Hebrew: ain schlichut bavirah.
See Cramer in Schönke/Schröder, § 25, note 45.
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].
Quill v. Vaco, 80 F.3d 716 (2d Cir. 1996); Compassion in Dying v.
Washington, 79 F.3d 790 (9th Cir. 1996) (en banc).
The statutes in question generally punished both assisting and "driving" others to commit suicide. The constitutional challenge was directed only
at the former clause.
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.
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.
StGB §29 ("Every participant must be punished according to his personal culpability without regard to the culpability of others.").
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