Corporate Culpability as a Limit to the Overcriminalization of Corporate Criminal Liability: The Interplay Between Self-Regulation, Corporate Compliance, and Corporate Citizenship

Abstract

This paper argues that there is clear sign of the overcriminalization of corporate conduct in America's criminal law and procedure: regardless of the evidence of a law-abiding behavior by a good corporate citizen, the corporation will be considered guilty if a member of its organization commits a crime within the scope of authority and with the intent to benefit the corporation. The paper explains that corporate culpability may function as a limit to this current overcriminalization as it demands in corporate criminal law what is requested in individual criminal law: that despite the agent's action and intent, the principal has not exercised some kind of due diligence. In turn, if evidence of that corporate due diligence is provided, no court should declare that a corporation is guilty. Such an approach is not only consistent with the basic tenets of criminal law, but it also reflects the different rationale for holding corporations criminally liable in modern society (as opposed to the times in which corporate criminal liability was enacted). A recent example of this overcriminalization tendency was provided by the 2nd Circuit's ruling in the case United States v. Ionia Management S.A., which is briefly discussed at the end of the paper.