The Conundrum of Corporate Criminal Liability: Seeking a Consistent Approach to the Constitutional Rights of Corporations in Criminal Prosecutions

Abstract

The initial determination of whether a constitutional right should apply to a corporate criminal defendant should be based on the fundamental premise that the corporation's sole interest is protection from abuse of the government's power to investigate, prosecute, and sanction illegal conduct. Arguably, corporations do not have the human dignity interests that constitutional rights can also preserve. The Court first should compare the possibility of abuse with the effect of permitting a corporation to assert the right and the government's ability to enforce the law effectively. It then should determine whether there is a substantial likelihood that, absent the constitutional protection, the government will abuse a power that might lead to a questionable conviction of a corporate defendant. Only through this weighing of the effects of such an abuse of power can the Court determine the degree of protection a corporation merits under the Constitution in a criminal prosecution. This approach acknowledges that a corporation has no a priori claim to a specific constitutional right, and its interests can be outweighed by the necessity of preserving the government's capability to support a productive law enforcement program when the potential for abuse is not significant.

The proposed approach is consistent with the Supreme Court's analysis of corporate rights first undertaken in Hale v. Henkel. Since that decision, the Court has rejected corporate claims to the privilege against self-incrimination. This has been mainly because permitting the assertion of the right would have a deleterious effect on the enforcement of regulatory provisions, which were designed to curb corporate misconduct. Nevertheless, the Court does not permit the government to make full use of the act of producing corporate documents against the individual custodian. Under the Fourth Amendment, the Court acknowledges a limited corporate right that is not coextensive with the protection afforded to the individual. Yet, it still recognizes that denying corporations all protection from unreasonable searches and seizures would give the government carte blanche to abuse its power.

Keywords: White Collar Crime, Criminal Law, Corporate Criminal Liability, Constitutional Rights

JEL Classification: K14, K41