Closing commentary on corporate criminality: legal, ethical, and managerial implications.

• Author: Meese, Edwin
• Position: Symposium: Corporate Criminality: Legal, Ethical, and Managerial Implications

An unprecedented politicization of American criminal-law policy and practice has taken place over the past fifty years. Perhaps nowhere is this more evident today than in the area of corporate criminality. In step with this period of increasing politicization, the size and scope of criminal law enforcement, especially at the federal level, has expanded dramatically. The average business person and the average corporation have little or no hope of knowing all of the thousands of criminal-law statutes--and tens of thousands of criminal law regulations--by which they must abide in order to remain on the right side of the law. This is one of the primary reasons why it is no longer possible to avoid becoming a criminal by relying on one's conscience and general understanding of the law. A second is that state and federal lawmakers have criminalized many forms of productive economic and social activity that, until very recently, were never considered wrongful.

Many leading commentators demonstrate indifference at best toward white-collar defendants who have been subjected to unjust criminal proceedings. But in my view, corporations and other business organizations and their employees are unusually vulnerable today to heavy-handed enforcement of the criminal law. The swift demise of worldwide accounting powerhouse Arthur Andersen just days after it was indicted has communicated an unmistakable message to all corporate boards of directors: If you want your company to survive, you must do whatever the government expects of you in order to avoid an indictment, which otherwise could prove to be your death sentence. As a result, government criteria for determining whether to prosecute a business organization---criteria that were originally intended to distinguish between business organizations that are criminally corrupt and those that undertake reasonable, good faith efforts to act as responsible, law-abiding corporate citizens--have a far different effect. These criteria are routinely used to coerce (sometimes directly but more often indirectly) business organizations into waiving essential protections against unjust criminal proceedings and capitulating to harsh conditions in return for the government's agreement not to prosecute--at least temporarily.

No other class of defendants who lack the intent to engage in any wrongful conduct whatsoever is as vulnerable to conviction for the wrongs committed by others as is the class of business organizations and their directors and managers. This class has been hit the hardest by the last fifty years of judicial and legislative innovations. These innovations include bringing into the service of criminal prosecution and punishment doctrines that the common-law developed to remedy torts--where money damages have always been the historical remedy for wrongs committed. These innovative criminal law doctrines include strict criminal liability, vicarious criminal liability, and respondeat superior. Their use in service of criminal prosecutions has transformed much economically and socially beneficial conduct into act-at-your-peril activities. Even an inadvertent misstep by those acting with all due care can result in an organization suffering criminal penalties and individuals spending time in prison. And of course, the overwhelming majority of the tens of thousands of federal and state regulations that carry criminal penalties are aimed directly at business organizations and their employees.

The essays on white-collar crime in this volume of the American Criminal Law Review, and the corresponding panels at the March 2007 Corporate Criminality Symposium, which served as the starting point for most of these essays, reflect some of the leading thinking on this deterioration of the criminal law and criminal process. Criminal prosecution and punishment is the most powerful force that government regularly uses against its own citizens. Many commentators recognize that whenever the protections one class of Americans receives against unjust prosecution and punishment deteriorates, that deterioration has grave implications for the protections afforded all Americans. This is as true when the class is composed of the affluent and successful as it is when the class is composed of the socially and economically disadvantaged. Precedent shapes every aspect of our criminal justice system.

My colleagues and I at The Heritage Foundation, in conjunction with allies such as the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, have been working for several years to raise public awareness of these problems and to promote meaningful reform before our criminal-law traditions and protections are...