NCJ Number
130263
Journal
St. John's Law Review Volume: 64 Issue: 4 Dated: special issue (Fall 1990) Pages: 725-777
Date Published
1990
Length
53 pages
Annotation
The development of current doctrines of imputed civil and criminal liability is traced, and the rationale behind adopting a different approach in the Racketeer Influenced and Corrupt Organizations (RICO) Act context is discussed.
Abstract
Under the current Federal doctrine of vicarious criminal liability, an organization is held criminally responsible for crimes committed by its agents within the scope of their employment and with the intent to benefit the organization. The doctrine's scope is extremely broad; it imposes liability regardless of the agent's position in the organization and even if criminal conduct was in defiance of express company policy. This doctrine is considered to be fundamentally flawed because it is based on "respondent superior" principles that are concerned with distributing loss caused by tortious acts. It has virtually no connection to moral culpability, an indispensable element of criminal liability for any intent-based crime. Therefore, under Federal criminal law, organizations are improperly tainted in this crucial respect. The authors suggest that an organization's moral culpability be judged by the actions of its officers, directors, and other high-level managerial agents. This approach provides the correct standard for determining organizational liability under RICO in both criminal and civil cases. Principles embodied in the Model Penal Code and the proposed Federal Criminal Code provide ample protection for legitimate organizations and impose the full weight of RICO's penalties on truly corrupt organizations. 242 footnotes