The blameless corporation.

• Author: Thompson, Larry D.
• Position: Corporate criminal liability

INTRODUCTION **

Good afternoon. Two things you might discern from that wonderful introduction are that I'm old and I've been around a long time. I really have been around a long time and have experienced, as a defense lawyer and as a prosecutor, the issue of corporate criminal liability. So it's really good to be able to talk to my colleagues about it. I prepared a written speech for today, but instead of delivering it, I would like to talk with you informally this afternoon.

I'd like to begin by reading the following quotation: "'[W]hite-collar crime[]' [is] one of the most serious problems confronting law enforcement authorities." Who would you guess wrote that? Was it Ralph Nader, Barney Frank, or some other crusading politician? No, this was written by former Chief Justice Rehnquist, hardly a paragon of anti-corporatism. The quotation illustrates the problem that we have with corporate criminal liability: We have maintained for years a sense of hysteria about corporate criminal conduct and, while aggressively prosecuting corporations, have not actually mitigated the problem of white-collar crime in America. I would like to explore with you this afternoon two aspects of this mess and share some of my thoughts on possible solutions.

The first aspect is my sense that the corporate criminal process is unfair to corporations. Specifically, I question the application to corporate entities of a criminal process designed for real people. I want us to consider whether it is really possible for most corporations to submit to a jury trial. As all of you know, a corporation is a person in the eyes of the law. If you and I were under investigation and we thought that the government's investigation were ill conceived, we could exercise our constitutional right to challenge the government and defend ourselves against any charges before a jury of our peers. I am not convinced that most large corporations enjoy this right. This is one of the issues that I want to explore with you.

The second aspect of this mess is a sense of futility--we have subjected corporations to an unfair criminal law enforcement regime for decades without curbing corporate malfeasance. The quotation that I read to you came from Braswell v. United States, which is a 1988 case, so the current sense of urgency is one that we've had for a long time, and yet we still have scandals. We had major scandals in 2001 and 2002, and we again experienced the same sort of scandals, if not worse, in 2008. And I think that a lot of people are again concerned about what we can do to address criminal activity in the corporate context.

1. PROSECUTING A CORPORATION

   As we all know, it is unusual for a major corporation to submit itself to a criminal trial. Such a trial is simply too risky. One of the reasons it's risky is the strict liability that the company has for the actions of its employees. If one of the corporation's employees or agents has done something wrong, and the jury instruction applies the doctrine of respondeat superior, the corporation will lose the case, no matter how brilliant its evidence at trial. Today, we are almost to the point where a responsible corporation...