NCJ Number
227152
Journal
American Criminal Law Review Volume: 46 Issue: 2 Dated: Spring 2009 Pages: 359-390
Date Published
2009
Length
31 pages
Annotation
This article explains the principles that guide the law of corporate criminal liability.
Abstract
One section of the article explains the three elements required to incur corporate criminal liability. A corporation has no physical existence and can be held vicariously criminally liable for the acts, omissions, or failures of employees acting as agents of the corporation. Courts hold a corporation vicariously liable for the acts of its employee if the individual acted within the scope and nature of his/her employment; acted, at least in part, to benefit the corporation; and the act and intent can be imputed to the corporation. This is followed by a section of the article that focuses on the U.S. Sentencing Guidelines’ mechanism, including the requirements of Sarbanes-Oxley and the effect of the Supreme Court’s decision in United States v. Booker (2005). Under Federal law, corporations are sentenced pursuant to the Organizational Sentencing Guidelines. Punishment consists of a fine calculated after the conviction. The amount is based on either the victim’s loss or the defendant’s gain multiplied by a factor specified in the U.S. Sentencing Guidelines. The U.S. Supreme Court has held the guidelines to be only advisory under “Booker.” Despite their advisory nature, however, courts are still required to consult the Guidelines. Under the Sarbanes-Oxley Act, Congress directed the Sentencing Commission to review and amend the Guidelines so as to ensure that the provisions that apply to organizations "are sufficient to deter and punish organizational criminal conduct." In 2004, the Commission added a guideline specifically addressing compliance and ethics programs. Corporations may mitigate the imposition of heavy fines and other sanctions by designing and implementing effective compliance programs. 233 notes