This article defends the controversial existence of criminal liability for corporations by showing how, when a corporation commits a crime, it imposes additional harms on its victims which flow specifically from the nature of the corporate structure itself and therefore cannot be vindicated solely through the punishment of individual employees. First, I examine the current debate on corporate criminal liability and argue that it overlooks the important question of whether there is a difference in kind, as opposed to simply degree, which distinguishes corporate crime from individual crime and therefore justifies allegedly “redundant” punishment. Second, I use the example of the crime of bribery to demonstrate how the nature of the wrong it punishes relates to the networks bribery creates to consolidate power—real and perceived—over other market participants, and the attendant social malaise that results from the corruption of these networks. Third, I marshal psychological, sociological, and narrative evidence suggesting that the same perceptual harms caused by corporate acts of bribery are frequently at work in less obvious ways whenever a corporation commits a crime. I argue that upon this basis, and under circumstances in which a showing of corporate mens rea is possible, that corporate criminal liability should be available. Finally, I argue that, notwithstanding these strong arguments for corporate criminal liability, the bribery cases also demonstrate how the dramatic and variable role of prosecutorial discretion in attaching official blame to corporate harm runs the risk of undermining the expressive value of corporate punishment through an emphasis on consequentialist outcomes. These outcomes, I argue, improperly aggrandize the prosecutor’s ex post remedial role at the expense of redressing the underlying corporate harm.
Perceptual Harm and the Corporate Criminal,
81 U. Cin. L. Rev.
Available at: http://scholarship.law.uc.edu/uclr/vol81/iss1/5