Of Bad Apples and Bad Trees: Considering Fault-Based Criminal Liability for Complicit Corporations
33 Pages Posted: 13 Feb 2008
Current enforcement efforts are largely directed toward individual wrongdoers within the corporate entity, or "bad apples." In many cases, however, wrongdoing is encouraged by executive directives and corporate practices and policies. These corporations are "bad trees" that will continue to produce "bad apples" even after some employees are convicted. This essay draws on the doctrine of accomplice liability to consider when and how it is appropriate to hold corporations liable for crimes of their agents. When a corporation induces or encourages criminal conduct, the firm has behaved as an accomplice, and punishment is justified because the firm shares responsibility for the crime. Relying on this standard for corporate criminal liability rather than on respondeat superior would restrict corporate punishment to cases in which the entity can fairly be said to have acted through its executives and policies. Further, the goals of providing just deserts and deterring future crime support assigning criminal liability for such fault-based conduct.
Keywords: white collar crime
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