Corporate Criminal Law Unbounded

Abstract

Abstract In matters of lawmaking, ascription of fault, and imposition of punishment, corporate prosecution diverges from traditional understandings of what criminal law is, how it should be made, and how it should be implemented. Contemporary criminal law scholarship seeks to restrain the government’s enforcement and lawmaking powers in regard to punishment. At the same time, corporate crime scholarship presses in the opposite direction, urging government prosecutors to punish more often, more severely and more creatively. This divergence merits scrutiny and a measured reconsideration of corporate criminal law’s reform. If the specter of unrestrained prosecutorial discretion provides sufficient reason for criminal law’s contraction and reform, presumably those reform principles ought to apply as well to the world of corporate crime, where limiting principles are almost no-where to be found. This chapter recites criminal law’s fundamental tenets (aspirational as they may be) and highlights the particular ways in which corporate punishment diverges from and ultimately ignores them. It considers the normative implications of an “unbound” corporate criminal law and concludes by arguing for legislative reforms that would not only improve corporate criminal law’s adherence to the legality principle, but also impose needed restraints on the prosecutors who have been tasked with investigating, sanctioning and effectively regulating corporate misconduct.