Corporate Punishment by the U.S. Sentencing Commission

Abstract

The Sentencing Commission's Guidelines for Sen tencing Organizations1 will become final on Novem ber 1,1991, absent Congressional intervention. This essay assesses the Commission's product and the process by which it went about its task. In most civil law countries, organizational sentencing is simply not a problem because corpora tions are legally incapable of violating the criminal law.2 The American legal tradition is quite different;3 corporate criminal liability has been the rule since 1909, when the Supreme Court declared We see no valid objection in law and every reason in public policy why the corporation which profits by the transaction . . . shall be held punishable. . . .4 Congress has regularly applied the criminal law to corporations for more than a century.5 In the past decade, there has been a proliferation of federal corporate crime statutes6 and dramatic expansion of corporate criminal liability. These include statutes in the fields of securities, banking and defense procure ment; sentencing provisions for alternative fines based on profit derived from or loss caused by the criminal conduct; criminal and civil forfeiture; injunctions against fraud; restitution and notice to victims of the offense; and probation as an independ ent sanction rather than as an adjunct to the sus pended sentence.7