How does respondeat superior serve the ends of the corporate criminal law?
Not well.
That’s according to Columbia Law School’s Mihailis E. Diamantis in a new paper titled Corporate Criminal Minds (91 Notre Dame L. Rev. — forthcoming 2016.
Diamantis looks at the case of the Belgian ferry that capsized in 1987 after setting sail with her bow doors open, killing nearly 200 passengers.
A court found that the corporation that ran the vessel “was infected with the disease of sloppiness.”
Charges of manslaughter were brought against the corporation, but no individual employee was so sloppy as to have been grossly negligent. Applying respondeat superior, the court absolved the corporation of criminal charges.
And Diamantis points out that other times, respondeat superior exposes a corporation to criminal charges despite the overwhelming sense that the true criminal is not the corporation but some rogue employee within its ranks.
In United States v.Sun-Diamond Growers of California, a corporation’s in-house lobbyist defrauded the corporation in order to make illegal payments to politicians who were his friends.
Since the lobbyist could have been acting “also with an intent (however befuddled) to further the interests of his employer,” the court upheld charges against the corporation.
Even though, in the judges’ opinion, the corporation “looks more like a victim than a perpetrator,” they felt their hands were bound to uphold the conviction by prevailing doctrine and a poor exercise of prosecutorial discretion.
Diamantis comes up with an alternative theory to uphold corporate criminal liability — what he calls the inferential approach.
“It begins by recognizing that criminal punishment as a social practice, fulfilling social values, that should reflect the human socio-psychological nature motivating it,” Diamantis writes. “The inferential approach would have factfinders do exactly what they naturally do already when discerning the mental states of individuals and groups outside of the courtroom — infer likely mental states from acts and circumstances. By treating corporate defendants holistically, the inferential approach would reduce the current administrative burden of assessing corporate mens rea, which requires assessing the mental states of all involved employees.”
“And since it would draw on the process and types of inference already used for trying individual defendants, the inferential approach would be painless to implement and apply generally to all types of mental states. Lastly, the inferential approach furthers the aims of the criminal law better than respondeat superior. Because it uses the cognitive mechanisms by which people naturally assess group responsibility, the inferential approach is particularly apt to fulfill the criminal law’s expressive aims.”
Diamantis then looks again at the case of the ferry that killed almost 200 people, by setting sail with the bow doors open.
Applying respondeat superior, the court acquitted the corporation of manslaughter charges because, after reviewing the unusually “huge mass of material” about the conduct of the vessel, no individual employee was grossly negligent.
“If the inferential approach were in effect, the case may very well have shaken out differently,” Diamantis writes. “The prosecution would likely emphasize the two sentence narrative — the defendant launched its ferry with doors open, hundreds died when the ferry sank. Presented with just that narrative, factfinders would likely infer that the corporation was grossly negligent — how else does a corporation that runs ferries launch with bow doors open?”
“The defense could then seek to complicate the narrative, perhaps trying to introduce evidence of the corporation’s diligence, in general and leading up to the incident at issue: perhaps the corporation implemented several redundant safety checks, had a strict safety policy, disciplined its workers for policy violations, etc. In light of that competing narrative, factfinders may begin to question the inference that the corporation was grossly negligent — perhaps an act of God was at work instead.”
“Under the actual facts of the case, the defense would have a difficult time advancing the narrative of diligence since there was ample evidence that the corporation “was infected with the disease of sloppiness.”
“In light of those circumstances — setting sail with bow doors open and a track record of sloppy, unsafe behavior — factfinders could very easily infer that the corporation was grossly negligent in causing the ferry to capsize. The expressive aims of the criminal law were disserved in this case by acquitting the corporation. By opening the possibility of a conviction, the inferential approach is a step in the right direction.”
Diamantis says that under the inferential approach, a different result would also be possible in United States v. SunDiamond Growers of California under the inferential approach.
“Recall that Sun-Diamond was convicted of bribing public officials when its inhouse lobbyist defrauded it to funnel money to his politician friends,” Diamantis writes. “Under respondeat superior, the court felt its hand was forced since the employee intended to bribe the officials, and could conceivably have the mistaken belief that his employer would benefit thereby.
“But a court applying the inferential approach would have looked to the surrounding context, notably that the lack of corporate benefit and that the fact that the lobbyist defrauded Sun-Diamond to effectuate the payments. If other factual details supported this narrative, the inferential approach would have allowed the court to infer that Sun-Diamond did not intend to bribe officials. This would vindicate the overall impression that Sun-Diamond “looked more like a victim than a perpetrator.”