Criminality and Corporate Practices: A Preliminary Application of Criminal Law to Corporate Actors

Abstract

In the United States, corporate actors are extensively shielded from penalties under criminal law for inflicting injuries that are societal equivalents of criminal acts. This paper analyzes four extensively documented and publicized case examples of corporate quasi-criminal behavior to place corporate culpability for harm in the context of established criminal law, probe and refine the conceptualization of individual as opposed to organizational culpability, and explore options and requirements for applying a more individually focused approach to corporate criminality. As a point of departure, the cases focus on homicide and assault (i.e., willful or reckless physical injury). A rubric is presented translating corporate acts into existing interpretations of criminal law, drawn from the Model Penal Code of the American Law Institute. Key concepts for which criminal equivalencies are proposed include identifiable victims and perpetrators, criminal knowledge and responsibility, motivation, and the nature of victimization (e.g., willingness, inducements, ignorance). Special considerations in establishing methods of harm (“weapons”) and the type and severity of harm caused in the context of corporate crime are also addressed. The interaction between availability of evidence and grade of offense, and issues requiring resolution before criminal-equivalent behavior of corporate actors can be integrated into criminal codes, are also precursively explored.