The Download of the Week is Two Ways to Think About the Punishment of Corporations by Albert W. Alschuler. Here is the abstract:
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This article compares the criminal punishment of corporations in the
twenty-first century with two ancient legal practices – deodand (the
punishment of animals and objects that have produced harm) and
frankpledge (the punishment of all members of a group when one member
of the group has avoided apprehension for a crime). It argues that
corporate criminal punishment is a mistake but that viewing it as
frankpledge is less ridiculous than viewing it as deodand. The article
considers the implications of the choice between these concepts for
standards of corporate guilt and for the sentencing of corporate
offenders. After a brief historical description of deodand and
frankpledge, the article traces the history of corporate criminal
liability from William Blackstone through Arthur Andersen. It
emphasizes that this liability punishes the innocent, and it argues
that the punishment of innocent shareholders and employees should not
be regarded as “collateral” or “secondary.” The article notes that
subjecting corporations and their officers to punishment for the same
crimes creates sharp conflicts of interest. It reviews the history of
the Justice Department’s efforts to exploit these conflicts – initially
by encouraging corporate officers to deliver corporate guilty pleas to
gain leniency for themselves and more recently by pressing corporations
to gather and deliver information about their employees. The article
suggests that defenses of corporate criminal liability fall into two
categories. Arguments in the first category are expressive and match
those that once might have defended deodand. Arguments in the second
category are instrumental and match those that once might have
supported frankpledge. “Expressive retributivists” champion the deodand
perspective. They blame mindless legal entities for crimes committed by
their employees. This article considers the implications of their
arguments. Other defenders of corporate criminal liability view it as
frankpledge – a device for persuading everyone in an organization to
monitor everyone else. This article questions the propriety of
declaring some people guilty of other people’s crimes simply to
encourage them to police one another. On the assumption that corporate
liability is here to stay, however, the article argues that it is
better regarded as a means to induce internal monitoring than as bona
fide criminal punishment. This article then considers the implications
of the deodand and frankpledge positions. Neither of these positions
justifies the federal rule of respondeat superior that authorizes the
conviction of a corporation whenever an employee acting within the
scope of his employment has committed a crime. The champions of both
the deodand and frankpledge positions have in fact sought revision of
this rule. Expressive retributivists propose replacing the rule with a
“corporate ethos” standard. The article argues, however, that this
standard is incoherent and unworkable. The reform advocated by the
frankpledge proponents is more sensible. If the goal of corporate
criminal liability is to induce appropriate monitoring, the creation
and maintenance of an appropriate corporate compliance program should
provide a defense to liability. Proposals for such a defense have not
fared well, and this article considers their prospects. It suggests
that, although the respondeat superior standard is truly indefensible,
it survives because it affords broad powers to prosecutors. The article
examines how prosecutors have used and misused their extraordinary
powers. A final section of this article considers the implications of
the frankpledge perspective for sentencing corporate offenders. A
judge’s goal in punishing a corporation should be to induce a level of
monitoring that will prevent more criminal harm than the monitoring
will cost.