2 University of Puerto Rico Business Law Journal Vol. 7
though the scope and purposes of the criminal statutes applicable to corporations
have greatly expanded.
This paper addresses the question of whether principles of vicarious
liability should still be at the center of corporate criminal law. To do this, it
begins by considering the purposes of criminal law, and the nature of corporate
personhood to help identify the fundamental objectives that should be
accomplished when corporations are subject to criminal prosecution. Then, the
paper will examine how the principles of vicarious liability were injected into the
criminal law, as applied to corporations to show what purposes those principles
were designed to serve. Next, it reviews various approaches to modify the
principles of corporate criminal law and determine which of them are consistent
with the fundamental objectives that corporate criminal law should serve.
Finally, it concludes that those objectives are best served if principles of vicarious
liability are preserved while corporations are permitted to deny vicarious liability
with an affirmative defense of due diligence, in which they can show that they
took affirmative steps to prevent the criminal conduct of their agents and
Such a modification of the current standards for corporate criminal
liability would prevent corporations from being held responsible for the truly
independent wrongdoing of their agents and employees. If prosecutors have
declined to pursue formal criminal proceedings against corporations because they
feared the principles of vicarious liability would lead to unjust results, this
modification would remove a barrier to such proceedings. And if that barrier is
removed, there will be more opportunities to use the instrumentalities of the
criminal justice system as a formal expression of moral judgment about the
conduct of some of the most powerful and influential people in the United States.
II. THE PURPOSES OF CRIMINAL LAW
Any understanding of how corporations should be regulated by the
criminal law must begin with an understanding of the purposes that criminal law
serves. In general, criminal law has the purpose of protecting society from
wrongful conduct by establishing a moral standard for conduct —that is,
distinguishing between right and wrong— and by punishing those who fail to
meet that standard.
This broad objective is often described more specifically i n
terms of the concepts of retribution and deterrence.
Criminal law seeks to express
society’s moral judgments by taking retribution against wrongdoers, and it seeks
to deter wrongful conduct as a means of protecting the community.
Prosecution and punishment through the criminal justice system is a
means of effecting retribution against those who violate the moral principles
expressed through criminal statutes. “What actions are deemed to be criminal is a
judgment by society as to what is out of bounds of acceptable societal behavior.
Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 401–11 (1958).
Id.; see also Andrew Weismann, A New Approach to Corporate Criminal Liability, 44 AM. CRIM. L. REV.
1319, 1325–26 (2007).
Hart, supra note 3; Weismann, supra note 3.