A fresh look at the responsible relation doctrine.

• Author: Aagaard, Todd S.

1. INTRODUCTION

   Recent corporate scandals--Enron, WorldCom, HealthSouth, Tyco, Adelphia, Cendant, and more--have refocused attention on efforts to reign in corporate wrongdoing. Criminal enforcement, and in particular prosecuting individuals, can be one of the government's most powerful tools for combating corporate misconduct, but such prosecutions can be tricky. Our intuition may be to hold responsible those upper-level corporate officers and managers who allow illegal conduct to occur on their watch. But criminal liability in our society has historically, and appropriately, been quite circumscribed. Courts interpreting criminal enforcement provisions of statutes tend to assume that Congress legislated consistently with traditional principles of criminal law, which balance the objective of enforcing the rule of law with competing concerns, such as due process. The predominance of collective action and shared responsibility in business organizations can make it difficult to pin criminal liability on particular individuals acting within such organizations without overstretching traditional criminal law principles. The challenge, therefore, is to hold individuals accountable for wrongdoing to which they contributed, but in a manner that comports with general principles of criminal law.

   The responsible relation doctrine is one way in which such liability may be imposed, and it therefore warrants reexamination. The responsible relation doctrine holds individuals criminally liable for failing to prevent or correct violations that occur within their area of responsibility and control in a business organization. The origins of the doctrine in American jurisprudence are commonly traced back to two seminal Supreme Court cases, United States v. Dotterweich (1) and United States v. Park, (2) both of which upheld convictions of corporate executives for misdemeanor offenses based on their failure to prevent violations of the Federal Food, Drug, and Cosmetic Act (FFDCA), (3) without requiring proof that the defendants knew of the violations. Dotterweich and Park relied heavily on the idea that, although a duty to prevent violations was potentially onerous, such an obligation was necessary to effectuate the statute's purpose of protecting human health and safety. (4)

   Examinations of the responsible relation doctrine have uncritically accepted this public welfare rationale. Scholars and commentators analyzing Dotterweich, Park, and their progeny have tended to treat this line of cases as unique and self-contained, accepting as given that the public welfare rationale set forth in Dotterweich and Park determines, as one scholar put it, "the content, limits, and fairness" (5) of the responsible relation doctrine. (6) Moreover, existing analyses of the responsible relation doctrine focus almost exclusively on the link between the doctrine and the mental state elements of a criminal offense, and frequently mischaracterize that link. (7) In fact, although it is now relatively well-settled in the case law that the responsible relation doctrine does not affect statutory mental state elements, much of the commentary on the doctrine mistakenly continues to describe it as principally affecting mental state. (8) The responsible relation doctrine's relationship to the act elements of the offense, by contrast, has rarely been explored.

   The legitimacy of the responsible relation doctrine as a basis for imposing criminal liability in any circumstance should depend, like any other judicially created doctrine of criminal law, on whether the doctrine can be explained by reference to widely accepted principles of criminal law. But the upshot of the two aforementioned analytical shortcomings--an uncritical acceptance of the public welfare rationale and misguided focus on mental state--is that the doctrine has really not been rigorously tested; we do not know whether responsible relation liability follows from generally accepted criminal law principles. Moreover, without a clear explanation of how and why the doctrine is a legitimate basis for criminal liability, it is impossible to determine where the doctrine should and should not apply. In short, before it is ready to be considered for more widespread application and acceptance, and indeed before we can be sure that the doctrine is acceptable in any application, the responsible relation doctrine needs a robust defense.

   This Article suggests a rethinking of the responsible relation doctrine. It starts from the premise that, because the responsible relation doctrine is judicially created, its validity as a basis for criminal liability depends on whether it is rooted in, and consistent with, generally accepted and generally applicable principles of criminal law. (9) In other words, if the responsible relation doctrine follows from general principles of criminal liability, then it is a fair inference that the legislature intended the doctrine to apply to offenses that meet the doctrine's requirements, absent a contrary indication in the language, structure, or purpose of the statute that defines the offense.

   The Article begins in Section II by reviewing Dotterweich and Park, the two seminal Supreme Court cases that established the doctrine. Section III then uses Dotterweich, Park, and the substantial body of case law that has addressed the doctrine's application to felony violations of federal environmental laws (10) to demonstrate that, although much of the scholarly attention on the doctrine has focused on its relationship to mental state, in fact the doctrine addresses the act elements of a criminal offense and not mental state. Section IV shows that the conventional public welfare explanation for the doctrine, which argues that the doctrine provides added and important deterrence of legal violations that threaten human health and safety, does not provide a principled justification for the doctrine. Section V explains that the doctrine also cannot be justified as a form of aiding and abetting liability. Section VI argues that the responsible relation doctrine is best understood and defended as properly following from traditional criminal law prohibitions on acts of omission, and specifically from the principle that individuals may be criminally liable when their failure to fulfill their employment responsibilities results in a harm that is punishable as a crime. Section VII explains that, examined through this lens, the responsible relation doctrine can justifiably be applied in a variety of contexts in which a defendant's employer gives him the responsibility to prevent violations of the law. Finally, Section VIII discusses some insights into the operation of the responsible relation doctrine that are highlighted by identifying the doctrine as a species of criminal omission.

2. THE ORIGINS OF THE RESPONSIBLE RELATION DOCTRINE

   Any analysis of the responsible relation doctrine in American jurisprudence must begin with a detailed examination of Dotterweich (11) and Park. (12) Dotterweich was president and general manager of the Buffalo Pharmacal Company, a pharmaceutical corporation. (13) Buffalo Pharmacal shipped some misbranded and adulterated drugs, and the government prosecuted both Dotterweich and Buffalo Pharmacal for criminal violations of FFDCA. (14) The jury hung as to Buffalo Pharmacal and convicted Dotterweich. (15) The court of appeals reversed, holding that the FFDCA should be construed narrowly and that individuals were subject to prosecution for violations of the FFDCA only by piercing the corporate veil--by showing that "an individual operated a corporation as his 'alter ego' or agent." (16)

   The Supreme Court reversed the court of appeals and upheld the convictions, holding that the FFDCA should be construed broadly, rather than narrowly, in order to effectuate its purpose of protecting "the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection." (17) The FFDCA was a

   now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct--awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. (18) The Court acknowledged that penalizing individuals with a responsible relationship to the violation, even where there was a lack of intent, could impose a hardship when it reached those without "consciousness of wrongdoing," but concluded that this potential hardship reflected Congress' determination that the balance of hardships favored giving the responsibility to avoid violations of the FFDCA on "those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless." (19) Finally, the Court declined to define which employees stand in responsible relation to a violation, deferring to "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries" (20)

   Dotterweich was clearly being held liable for a failure to prevent a violation of the FFDCA; there was no suggestion that Dotterweich had participated in or affirmatively assisted with the shipments of misbranded and adulterated drugs. But the Dotterweich majority did not speak of the "responsible relation" standard in terms of omissions. Instead, the Court seemed to see the "responsible relation" as probative of determining who could be prosecuted for a regulatory violation despite a lack of conscious wrongdoing. (21) In a dissent, however, Justice Murphy criticized the majority's "responsible relation" standard for allowing a conviction without active participation and without knowledge. (22) Justice Murphy...