CorporateCriminalLiabillity.KellyKilgoreSmith

CorporateCriminalLiabillity.KellyKilgoreSmith - Page 1 17...

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Page 1 17 of 122 DOCUMENTS Copyright (c) 2011 American Criminal Law Review American Criminal Law Review Spring, 2011 48 Am. Crim. L. Rev. 421 LENGTH: 14949 words ARTICLE: CORPORATE CRIMINAL LIABILITY NAME: SARAH KELLY-KILGORE and EMILY M. SMITH LEXISNEXIS SUMMARY: ... The Organizational Guidelines strongly encourage corporations to reduce criminal violations through the adoption of compliance and ethics programs. ... The provisions of the Organizational Guidelines that govern fines exclude environmental, food and drug, and export control offenses. ... Where restitution is not authorized by statute, sentencing courts may make payment of restitution a condition of probation. ... Second, the Organizational Guidelines direct federal judges to use the prior history of convicted organizations in order to adjust the culpability score. ... Fourth, an effective compliance program requires the organization "take reasonable steps to communicate periodically and in a practical manner its standards and procedures" to all its employees as well as its other agents in order to reduce the number of unintentional infractions. ... Although DPAs allow corporations to swiftly resolve investigations and provide reassurances to the shareholders and employees of the company's continued viability, DPAs also risk increased exposure to civil liability and financial penalties. TEXT: [*422] I. INTRODUCTION Corporate criminal liability developed as courts struggled to overcome the problem of assigning criminal blame to fictional entities in a legal system based on the moral accountability of individuals. n1 Courts began with the civil law-based doctrine of respondeat superior n2 and gradually injected aspects of the criminal law, such as hearings and sentencing, into cases with corporate defendants. n3 This practice, however, raises theoretical questions because corporations can act only through individuals and not independently. n4 Although criminal prosecution of corporations is guided by recognized principles, many prosecutors still proceed against corporations with great caution, persuaded by the argument that punishing a corporation in effect punishes innocent stockholders. n5 In response to increasing public outrage over corporate scandals at the turn of the century, Congress passed the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley"). n6 Although Sarbanes-Oxley exposes corporations to increased criminal liability, most investigations and prosecutions have targeted the wrongdoing of individual officers instead of the corporations they work for. n7 While recognizing that corporations will be subjected to criminal liability in a small percentage of cases, the Department of Justice ("DOJ") still insists that prosecutors seek indictments against companies guilty of corporate wrongdoing. n8
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This note was uploaded on 02/11/2012 for the course GENERAL ST 410 taught by Professor Huck during the Fall '11 term at Berea.

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