Vicarious Criminal Liability
February 24, 2010Elizabeth K. Bingold, Michael H. Huneke
The criminal law is a powerful tool with which federal prosecutors attempt to secure a robust and healthy marketplace. The efficacy and appropriateness of using criminal law to regulate corporations, however, has been subject to renewed scrutiny on theoretical and pragmatic grounds, including Professor John Hasnas’s question of whether a corporation can ever meet the three conditions for criminal punishment: (1) “its sanction should be applied only where doing so advances the purpose of punishment,” (2) there must exist a requirement “that criminal provisions be crafted to place objective limitations on prosecutorial discretion,” and (3) recognition that criminal sanctions can “be applied only where they are necessary to address a public harm.” However, the legality of imposing criminal liability on corporations has been long settled in practice, and recently reaffirmed, in the courts. Therefore, any change in the status quo must be the result of effective legislative change. This article will briefly discuss the evolution of vicarious criminal liability for corporations, the current problem, and suggest a possible policy or legislative solution.