Corporate criminal minds.

• Author: Diamantis, Mihailis E.

ABSTRACT

In order to commit the vast majority of crimes, corporations must, in some sense, have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. As a result, they saddle themselves with unjustifiable theories of mental state attribution, like respondeat superior, that produce results wholly at odds with all the major theories of the objectives of criminal law.

This Article draws on recent findings in cognitive science to develop a new, comprehensive approach to corporate mens rea that would better allow corporate criminal law to fulfill its deterrent, retributive, and expressive aims. It does this by letting factfinders attribute mental states to corporations at trial as they ordinarily do to similar groups out of the courtroom. Under this new approach, factfinders would be asked to treat corporate defendants much like natural person defendants. Rather than atomize corporations into individual employees, factfinders would view them holistically. Then, factfinders could do just what they do for natural people--in light of surrounding circumstances and other corporate acts, infer what mental state most likely accompanied the act at issue. Such a theory harmonizes with recent cognitive scientific findings on mental state and responsibility attribution, developments that corporate liability scholars have mostly ignored.

INTRODUCTION

American criminal law adopted the fiction that corporations are people so it could hold them accountable for wrongdoing. (1) But it left the project incomplete. Though crimes typically require an actus reus and a mens rea, (2) courts have no real theory of how corporations, which have no bodies or minds, could instantiate either. (3) The best they have is an antiquated gimmick--respondeat superior--for holding corporations vicariously responsible for the crimes of their employees. (4) That approach may have the benefit of making courts somewhat consistent in deciding when to hold corporations accountable. But even that lone virtue is now threatened as respondeat superior, at this stage in corporate history, increasingly produces outcomes at odds with any sensible notion of criminal justice.

Sometimes respondeat superior lets patently criminal corporations off the hook. This could be because, in complex and opaque organizations, the paper trail may be too long and incomplete to find individuals who committed crimes attributable to the corporation. (5) Or it could be because there literally is no individual employee who did anything proscribed by law. For example, in one case, a ferry capsized after setting sail with her bow doors open, killing nearly 200 passengers. (6) From top to bottom, the corporation that ran the vessel "was infected with the disease of sloppiness." (7) Prosecutors brought manslaughter charges against the corporation, but no individual employee was so sloppy as to have been grossly negligent, the required mens rea. (8) Applying respondeat superior, the court found the corporation not guilty. (9)

Other times, respondeat superior exposes a corporation to criminal charges despite the overwhelming sense that the true criminal is not the corporation but some rogue employee within its ranks. (10) In United States v. Sun-Diamond Growers of California, (11) a corporation's in-house lobbyist defrauded the corporation in order to make illegal payments to politicians who were his friends. (12) Since the lobbyist could have been acting "also, with an intent (however befuddled) to further the interests of his employer," the court upheld charges against the corporation. (13) Though, in the court's opinion, the corporation "look[ed] more like a victim than a perpetrator," it felt its hands were bound to uphold the conviction by prevailing doctrine and a poor exercise of prosecutorial discretion. (14) Even if one is not moved by the particular facts in Sun-Diamond, rogue employees are a pervasive concern. (15) Such scenarios are unavoidable in the current world of massive, dispersed, international corporations, regardless of how robust internal compliance mechanisms may be. (16) Judges and laypeople alike share the palpable sense of inappropriateness at criminally condemning corporations due to the acts of rogue employees, even when the facts are not so sympathetic. (17)

Cases such as these undermine the most basic goals of criminal law, and may even have ripple effects that compromise criminal law outside of the corporate context. There is no successor theory of corporate liability poised to take the reins, and nothing satisfactory floating in academic literature. (18) Some proposals, like Peter French's "internal decision structure" model, (19) rest on naive understandings of how complex corporations actually operate. Others, like the "collective knowledge doctrine" advanced by judges (20) in some jurisdictions, only exacerbate the problems of respondeat superior.

Against this stark background, this Article takes a first step toward a solution by providing a comprehensive theory for adjudicating corporate mental states. Previous scholarship has been limited by the tacit assumption that triers of fact must use fundamentally different procedures for attributing mental states to individuals and corporations. But a substantial and growing body of cognitive science research indicates that people ordinarily use the same psychological mechanisms whether assessing the mental lives of individuals or of groups like corporations. An elegant solution to the problem of corporate mens rea, and the one proposed by this Article, would accept what people naturally do and build the requirements for mens rea around that understanding.

The Article begins by recounting how corporate criminal law ended up in its current predicament, a story intimately bound up with the history of respondeat superior and the evolution of the modern corporation. The Article next motivates the effort to keep a place for corporate mens rea in criminal law, despite how seemingly bizarre the concept may be. It argues that some requirement of corporate mens rea must remain if criminal law is to fulfill its central functions. The Article then raises, only to set aside, alternate theories of corporate mental states.

Turning to its positive argument, the Article asks first whether there really is a unique problem for adjudicating corporate mental states, and concludes that courts face similar problems with the mental states of natural person defendants. Drawing on this key observation, the Article proposes further anthropomorphizing corporations in the eyes of the law, and adjudicating their mental states just as courts do those of natural persons--inference to the best explanation from acts and surrounding circumstances. The resulting theory harmonizes with recent discoveries in cognitive science and social psychology about how people actually assess the blameworthiness of groups like corporations.

This Article proceeds from relatively open-ended starting premises. It makes no assumptions about the "real" nature of corporations or the best theory of corporate actus reus. In the early twentieth century, theorists debated whether corporations are just groups of people or actually constitute distinct entities separate from their members. (21) But, by focusing on how people perceive corporations, rather than on the nature of corporations themselves, this Article sidesteps that debate entirely. Similarly, though this Article assumes that there is some sensible theory of corporate actus reus--a way of resolving when a corporation has done something and what--nothing will turn on the details of that theory. (22)

1. THE UNMAKING OF RESPONDEAT SUPERIOR

   Corporate criminal law developed its primary theory of liability at a time when corporations looked very different than they do today. Corporations began as limited entities (23) in twelfth-century England. (24) In colonial America, the actions they could take were severely restricted, and could never include anything not specified in their corporate charters. (25) In line with longstanding British law, (26) a corporation was not liable for so-called "ultra vires acts" because, being beyond the powers conferred by its corporate charter, the corporation literally could not do them. (27) From Blackstone's time (28) and well into the twentieth century, (29) the very possibility of disembodied and mindless corporate crime left theorists nonplussed. (30)

   Around the time of the Civil War, American courts began utilizing doctrines of vicarious liability as a legal band-aid for the problem posed by ultra vires acts in the civil context. (31) Specifically, courts introduced the doctrine of respondeat superior, (32) according to which corporations are civilly liable for the acts of their "employees while acting within the scope of their employment." (33) Courts at the time regarded respondeat superior as a matter of "public policy and convenience" rather than a logical consequence of the nature of corporations. (34)

   The development of vicarious criminal liability was a slower, piecemeal process (35) that progressed by way of analogy to tort law. (36) Corporations were first held liable for failures to act. (37) Later, corporations were charged with affirmative criminal conduct, so long as the offense did not have a mental state element. (38) It was not until the early twentieth century that prosecutors indicted corporations for guilty mental state crimes with any regularity. (39) The delay was no doubt occasioned by concerns such as that voiced by Lord Chancellor Edward Thurlow (1731-1806): "Corporations have neither bodies to be punished, nor souls to be condemned, they therefore do as they like." (40) In recognizing corporate crime, U.S. courts led the charge, (41) adopting respondeat superior for this purpose, more out of convenience than thoughtful reflection...