NCJ Number
231911
Journal
American Criminal Law Review Volume: 47 Issue: 2 Dated: Spring 2010 Pages: 331-362
Date Published
2010
Length
32 pages
Annotation
In reviewing the principles that guide the law of corporate criminal liability, this article discusses the three elements required to incur corporate criminal liability and explains the U.S. Sentencing Guidelines' mechanism for sentencing organizations, with attention to the requirements of the Sarbanes-Oxley Act of 2002 and the effect of the U.S. Supreme Court's decision in United States v. Booker.
Abstract
Courts hold a corporation vicariously liable for the acts of an employee if the individual acted within the scope and nature of his/her employment; acted, at least in part, to benefit the corporation; and the act and intent can be imputed to the corporation. Although the Sarbanes-Oxley Act exposes corporations to increased criminal liability, most investigations and prosecutions have targeted the wrongdoing of individual officers instead of the corporations that employ them. Although recognizing that corporations will be subjected to criminal liability in a small percentage of cases, the U.S. Justice Department insists that prosecutors seek indictments against companies when there is evidence of corporate wrongdoing, particularly when a corporation impedes or obstructs a Federal investigation. Under Federal law, corporations are punished pursuant to the Organizational Sentencing Guidelines. Punishment consists of a fine calculated after conviction. The fine is based on either the victim's loss or the defendant's gain multiplied by a factor set forth in the U.S. Sentencing Guidelines. In United States v. Booker (2005), the Court held that the sentencing guidelines are advisory only; however, despite their advisory nature, courts are still required to consult the Guidelines. The article's explanation of the Organizational Sentencing Guidelines addresses their purpose and scope, the offenses covered, and sanctions permitted. 232 notes