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The Humanization of the Corporate Entity: Changing Views of Corporate Criminal Liability in the Wake of Citizens United

51 Pages Posted: 9 Feb 2010 Last revised: 28 Jun 2010

Elizabeth R. Sheyn

affiliation not provided to SSRN

Date Written: February 8, 2010


Although the recent United States Supreme Court decision in Citizens United v. Federal Election Commission clearly controls the First Amendment rights of corporations, the effect of Citizens United on corporate criminal liability is less obvious, though equally (if not more) significant. The Court’s view that corporations are equal to human beings, at least under the First Amendment’s Free Speech Clause, when combined with the traditional understanding that corporations are considered “persons” under the United States Constitution, likely impacts the way that corporations’ alleged misdeeds are investigated by the government and the manner in which the government subsequently deals with corporate misconduct, specifically through deferred prosecution agreements and non-prosecution agreements.

In particular, certain provisions that are typically included in deferred and non-prosecution agreements may have to be altered or eliminated from use altogether in the wake of Citizens United. Another result prompted by the decision could be the implementation of judicial oversight over these agreements, which would include the submission of all such agreements to federal courts for approval and the provision of an opportunity for a corporation to be heard if the government made a unilateral claim of breach. Undoubtedly, these changes would greatly alter the landscape of corporate criminal liability in the United States.

Part I of the Article provides an introduction to the concept of corporate criminal liability, with Section A describing the courts’ approach, Section B providing an overview of the commentators’ approach, and Section C detailing the government’s approach — including overall corporate charging and sentencing policy. Part II explores the government’s use of deferred prosecution agreements and non-prosecution agreements and courts’ and commentators’ views on such agreements. Part III examines the Supreme Court’s decision in Citizens United. Finally, Part IV enumerates the ways in which Citizens United potentially affects the above-described approaches to corporate criminal liability and outlines resulting changes with respect to the government’s treatment of corporate criminality.

Keywords: Citizens United, corporations, criminal liability, deferred agreements, non-prosecution agreements, government, charging, policy

Suggested Citation

Sheyn, Elizabeth R., The Humanization of the Corporate Entity: Changing Views of Corporate Criminal Liability in the Wake of Citizens United (February 8, 2010). University of Miami Law Review, Vol. 65, No. 1, 2010. Available at SSRN:

Elizabeth R. Sheyn (Contact Author)

affiliation not provided to SSRN ( email )

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