Condemnation Without Basis: An Expressive Failure of Corporate Prosecutions
Gregory M. Gilchrist
Volume 64, Issue 4, 1121-1170
This is the second of two Articles on the expressive aspects of corporate criminal liability. The first Article argued that to justify imposing criminal liability on corporations we must refer to the expressive function of criminal liability. This Article considers the expressive function of actual corporate prosecutions and identifies aspects of corporate prosecutions that generate expressive costs rather than benefits. These are the expressive failures of corporate prosecutions. This Article identifies a number of these failures and introduces a model of perceived legitimacy and the expressive function of punishment that explains how expressive failures harm the legal system. Mere respondeat superior liability—holding corporations criminally liable where there is no basis to condemn the corporation qua corporation—is the most significant expressive failure. It is also the easiest to fix: Allow corporations a good-faith defense against criminal liability. Good faith defenses have been proposed before, but this is the first proposal based on the expressive impact of the defense. A good faith defense will limit the application of corporate criminal liability to those instances where there is a basis to condemn the corporation as a whole, thus realigning the expression inherent in criminal punishment with commonly held views about blaming corporations.