The dangers of over-criminalization and the need for real reform: the dilemma of artificial entities and artificial crimes.

• Author: Thornburgh, Dick
• Position: Symposium: Corporate Criminality: Legal, Ethical, and Managerial Implications

Thank you for the opportunity to speak with you about this important topic today. Nearly ten years ago I delivered a speech in which I discussed the perils of over-criminalization and remarked that reform was needed before Congress further abused its power in creating more criminal statutes involving nontraditional criminal conduct. (1) While the passage of time has validated those concerns, I take no pleasure in having been proved justified in expressing them.

During that interim, there has been significant academic and practitioner thought devoted to the topic of over-criminalization by thoughtful individuals from diverse ideological groups. These groups and I share a common goal: to have criminal statutes that punish actual criminal acts, and not to criminalize conduct that is better sanctioned in civil and regulatory forums. Because of the serious corporate scandals we have observed over the past several years, which have focused more public attention on this subject, it is an especially appropriate time to assess this aspect of federal criminal law, and to consider real and substantive reform.

I choose to address this subject through an examination of what I call artificial entities and artificial crimes. As to artificial entities, we all know that the United States exceeds almost all other nations in the degree to which it treats an incorporated group of individuals as a separate entity. An incorporated group may be an artificial creation but, for all practical purposes, it acquires and maintains its own popular and legal persona. Although the popular persona may seek to alter itself through the exertions of public relations specialists, the legal persona persists as a stable being, separate and distinct from the individuals who perform its functions. And the corporation remains, in the eyes of the law, very much an entity of its own.

A legal entity in the form of a corporation can engage in activities of a kind and on a scale far beyond the capacity of individuals, and often can have an effect upon a nation far beyond that of natural persons. For that reason, many activities of such artificial entities--especially activities in areas where the public risks are perceived to exceed the public benefit--are appropriately considered subjects for governmental regulation. Such regulation commonly may be enforced through administrative proceedings or civil judicial proceedings. In the United States however, our Congress has increasingly also attributed to artificial entities responsibility for crimes. Moreover, over the course of the past several decades there has been a tendency in the United States to attempt to regulate what previously had been considered non-criminal behavior, through criminal prosecutions--as well as through administrative and civil actions. Many of the "crimes" that have been created by this process are also artificial, in the sense that they do not meet the criteria traditionally employed in determining that particular conduct deserves society's most severe condemnation.

Traditional criminal law coverage, of course, encompasses various combinations of acts with varying consequences and requires different mental states, which evidence volition or awareness on the part of the actor to a degree that he or she is deemed blameworthy. These acts are collectively more commonly known as the requirements of an actus reus and amens rea.

Having reached a point where both the perpetrators and their "crimes" can be artificial, we are confronted by some very real problems. These manifest themselves as inefficiency in legitimate regulatory enforcement, as unfairness in the application of criminal regulatory sanctions, and as a devaluation of the traditional criminal laws through a lack of respect for the criminal process. To regulators, the first two problems are those that provoke attention. To those of us concerned with the efficient allocation of public resources, the third problem--the effect upon the basic penal law--may be viewed as carrying the most serious consequences.

Traditional Anglo-American criminal law was directed at those offenses that were acknowledged by society as wrongful--commonly acts against people or property. Congress has systematically devalued these traditional requirements by criminalizing acts which cause no cognizable harm to people or property. I was once asked by a group of visitors to the United States what it was that made an offense a federal offense. I replied rather flippantly: "the Congress." I then reflected for a moment to frame a more sober answer predicated upon jurisprudential philosophy, societal needs, and other grand principles, but I found, to my dismay, that I was unable to do so. The fact is simply that the Congress may make a criminal offense of virtually anything, and, particularly in some regulatory areas, the Congress seems to have done so.

With regard to the mental states that must accompany acts if they are to be deemed criminal, the law in the United States has...