Owing to the tort law origins of corporate liability that the respondeat superior standard provides, corporations may be held criminally liable with relative ease. Criminal liability thus attaches to corporations without any requirement that the corporation to be charged is morally culpable for harm or deserving of punishment. The Author argues that when a criminal liability standard is both easily met and imprecisely defined, it results in inconsistent, unpredictable, and unjust discretionary prosecution of corporations. While efforts have been made to temper the inconsistent application of corporate criminal liability law as it exists— notably, the Department of Justice has introduced a moral culpability standard analysis—the Author argues that the true deficiencies lie with the respondeat superior standard, which have not as of yet been effectively remedied.
The Author proposes several changes to, and expansions of, the DOJ Principles of Prosecution that would serve to address the inadequacies of the existing respondeat superior standard in corporate criminal liability prosecutions. The Author draws comparisons to legal standards applied in other jurisdictions and areas of law in order to substantiate the changes proposed. The changes to the legal standard, taken together, would serve to clarify, codify, and simplify the criminal prosecution of corporations by carefully limiting liability to those circumstances in which it is most justified. The Author argues that in addition to increasing the consistency of prosecution and outcome, imposing a moral culpability standard before the attachment of criminal liability is consistent policy as outlined in the 2015 Yates Memo and serves public policy goals of incentivizing corporate compliance.