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The Changing Role of Criminal Law in Controlling Corporate Behavior

The Changing Role of Criminal Law in Controlling Corporate Behavior

James M. Anderson
Ivan Waggoner
Copyright Date: 2014
Published by: RAND Corporation
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  • Book Info
    The Changing Role of Criminal Law in Controlling Corporate Behavior
    Book Description:

    This report addresses the use of criminal sanctions to control corporate behavior—prosecutions both of corporations and of employees for actions taken on corporations’ behalf. The authors describe the current state of the use of criminal sanctions in controlling corporate behavior, describe how the current regime developed, and offer suggestions about how the use of criminal sanctions to control corporate behavior might be improved.

    eISBN: 978-0-8330-8789-8
    Subjects: Law, Management & Organizational Behavior

Table of Contents

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  1. Front Matter
    (pp. i-ii)
  2. Preface
    (pp. iii-iv)
  3. Table of Contents
    (pp. v-vi)
  4. Figures and Table
    (pp. vii-viii)
  5. Summary
    (pp. ix-xvi)
  6. Acknowledgments
    (pp. xvii-xviii)
  7. Abbreviations
    (pp. xix-xx)
  8. CHAPTER ONE Introduction
    (pp. 1-14)

    What should be the role of the criminal law in controlling corporate and other organizational behavior?² Historically, the role of criminal law and punishment has been to deter undesirable behavior, provide retribution for those wronged, and incapacitate the wrongdoer. On the one hand, it seems only natural to apply criminal sanctions when a problematic activity is taken to aid the organization’s interests. It also seems natural to wish to punish the organization as though the organization itself is culpable and should be punished. On the other hand, Thurlow’s frustration, expressed in the quotation above, is certainly understandable. Corporations are legal...

  9. CHAPTER TWO How Did Criminal Law Come to Be Applied to Corporate Behavior, and What Lessons Can We Draw from That History?
    (pp. 15-40)

    Some critics argue that it is unfair to shareholders and to corporate executives for criminal sanctions to be leveled against a corporation or a director without any proof of moral culpability or criminal intent on their part.¹ For shareholders, the argument of unfairness is that they are blameless for the actions of difficult-to-control wrongdoers within the corporation, and a similar argument can be raised for directors. Given the historical centrality of proof of criminal intent in the history of Anglo-American criminal law, its absence in this context is striking. A review of the relevant legal history is therefore helpful to...

  10. CHAPTER THREE Recent History: A Shift to Reforming Corporations from Within
    (pp. 41-68)

    In Chapter Two, we reviewed the history of corporate prosecutions and the relaxation of the traditional requirements of proving criminal intent that made this possible. We noted that, “whether wisely or not” (in Justice Jackson’s phrase), Congress has passed many laws that included criminal penalties without requiring criminal intent. We now turn to more-recent history and focus on DOJ policies of the past 30 years in some detail. This recent history is important to understand how we came to the recent rise in the use of DPAs and NPAs.

    We first describe the pre–Federal Sentencing Guidelines for Organizations regime,...

  11. CHAPTER FOUR Trends in Prosecutions of Corporations and Individuals
    (pp. 69-96)

    We turn here to an analysis of available data to provide evidence on how the focus of criminal law in the corporate context has changed from prosecuting offenders to encouraging the corporation itself to police misconduct. Specifically, we look at federal prosecution trends concerning corporations and white-collar criminal offenses, trends in DPAs and NPAs, and trends in debarment. We use multiple sources of data for our analysis, which sometimes conflict but overall show a consistent theme. (See Chapter One for details about our data sources.)

    The notion that there is a recent shift to using criminal law to reform offending...

  12. CHAPTER FIVE Conclusions and Policy Implications
    (pp. 97-106)

    To consider the role of criminal law in the corporate context, we first described how the concept emerged. Originally, corporations were not criminally liable at all because of the intensely personal moral evaluation associated with criminal law and its general requirement of individual criminal intent. As restrictions on corporate criminal liability fell in the late 19th century, critics frequently decried the odd fit between the intentionality usually required in criminal law and corporate prosecutions. Yet despite this opposition, prosecutors, legislatures, and judges have long upheld these prosecutions, primarily on pragmatic grounds. Criminal penalties are justified, according to this view, not...

  13. References
    (pp. 107-126)