41 Stetson L. Rev. [i] (2011-2012)

handle is hein.journals/stet41 and id is 1 raw text is: STETSON LAw REVIEW

VOLUME 41                          FALL 2011                          NUMBER 1
CORPORATE CRIMINAL LIABILITY
INTRODUCTION                                                                    1
ARTICLES
Reevaluating Corporate Criminal Liability:
The DOJ's Internal Moral-Culpability Standard
for Corporate Criminal Liability                           Lucian E. Dervan     7
This Article examines the common law respondeat superior test for
corporate criminal liability and proposes that it be expanded to include
moral culpability. This Article supports this proposal by noting that the
Department of Justice has already incorporated a moral culpability
element into its analysis of corporate. criminal liability through the
Department's Principles of Federal Prosecution of Business
Organizations. While some might argue that the Department of
Justice's voluntary implementation of a new corporate criminal liability
standard is enough, this Article discusses two fundamental flaws with
this position. First, while federal prosecutors' consideration of the
Principles of Prosecution may be mandatory, these guidelines create
no legal rights for corporate defendants. Second, the Principles of
Prosecution contain elements for consideration that are outside the
appropriate scope of inquiry because they examine the corporation's
actions after the criminal conduct under scrutiny. Thus, this Article
proposes a revised common law respondeat superior test that includes a
legally binding moral culpability element that focuses on a refined and
appropriately limited group of pre-offense and offense-specific factors:
the nature and seriousness of the offense; the pervasiveness of
wrongdoing within the corporation; the corporation's history of similar
conduct; and the existence and adequacy of the corporation's pre-
existing compliance program.
The Case for More Rational Corporate Criminal Liability:
Where Do We Go from Here?                                    Cheryl L. Evans   21
Under the current corporate criminal liability standard, corporations
may be prosecuted despite their implementation of corporate
compliance programs. This Article argues that the current standard
does not adequately serve the detection and deterrence goals of the
criminal justice system because it subjects a corporation to criminal
liability no matter how diligent the corporation may have been in
establishing a corporate compliance program. This Article further
argues that the current standard, which resulted from a fundamental
misreading of Supreme Court precedent, should be reformed to
differentiate between responsible and irresponsible corporations. By
examining recent developments in corporate liability, including the
Supreme Court's limitation of corporate liability in civil cases, the
Model Penal Code's due diligence approach, the United Kingdom
Bribery Act, and amendments to the Unites States Sentencing
Guidelines, the Author concludes that changes to the current standard
that would allow a corporation's compliance efforts to constitute a
defense to criminal allegations would better serve the goals of the
criminal justice system and encourage responsible behavior by
corporations.

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