Criminal Law and Prosecution
The law of tort and criminal law, in essence, work to regulate the same body of conduct. Whereas tort law's regulatory function is an adjunct to its private compensatory purposeproviding redress to individuals harmed by othersthe criminal law works to punish and deter conduct deemed detrimental to the public as a whole.
Although tort lawsuits are initiated by private parties rather than the state, it is inaccurate to describe tort law as "private," since it is ultimately government power that redistributes wealth from one party, the tortfeasor, to another, the plaintiff. Notwithstanding the serious negative impacts wrought by abusive litigation, however, criminal prosecution places potentially even greater sanctions upon the accused. In addition to the moral opprobrium of being deemed a "criminal" by the state, individual defendants face potential loss of liberty through incarceration, and defendants face losing substantial collateral rights and privileges, such as voting rights for convicted individual felons and government contracts and regulatory permits for corporate defendants.
Given the heightened penalties stemming from criminal prosecution, and the risk of abuse by the state, the traditional English and American common law placed sharp constraints on government's prosecutorial power. Criminal prosecutions place upon the government a much-heightened burden of proof, guilt beyond a reasonable doubt. The grand jury, designed to check prosecutorial abuse, predates the Magna Carta and is enshrined in the Fifth Amendment, along with the right against self-incrimination. From this latter protection flowed the concept of attorney-client privilege, wherein the government could not build a case against a defendant based upon private communications with one's legal representation.
In addition, the law traditionally placed substantive limits upon the government's ability to proscribe conduct through the criminal law. The state was not permitted to criminalize conduct without notice (under the "rule of legality"), and criminal statutes were thus strictly construed to resolve ambiguity in defendants' favor, under the "rule of lenity." Generally, the law also required that criminal conduct be intentional; i.e., crimes had to involve not only a guilty act (actus reus) but also a guilty mind (mens rea).
Owing in part to this intent requirement, corporations were historically not subject to criminal liability for the actions of their employees. In a landmark case, New York Central & Hudson River Railroad v. United States, 212 U.S. 481 (1909), the Supreme Court imported from tort law the concept of vicarious liability; the general rule today is that corporations are subject to criminal liability for their employees' conduct, even if the conduct was not approved or condoned by the company, and even if the individual employee is not himself charged with a crime.
Under the traditional legal rules, policing corporations' conduct is often a more complicated task than policing traditional crimes, in which a clear victim with a clear injurystemming from murder, assault, robbery, or burglaryis present. Rather than merely identifying the wrongdoer, criminal prosecution of corporate conduct often involves a real question about whether a crime has even been committed. Moreover, concepts such as mens rea are not easily applied to corporate actions, given the diffuse nature of organizations.
In part owing to such difficulties, the criminal law has evolved in recent decades to weaken most of the traditional common law protections. Legal prohibitions have proliferated; even though criminal law was traditionally a province of the states, well over 4,000 federal crimes are now on the books. Individual as well as corporate liberties have been adversely affected by the burgeoning criminal law, as federal Sentencing Guidelines and executive memoranda place pressure on corporations to cooperateeven at the expense of their individual employees' Fifth Amendment protections.
Many of the books and articles available on this cite reflect the growing attention being placed to the criminalization of corporate conduct. In addition, interested readers should refer to the website of the Washington Legal Foundationparticularly useful to practitionersand to the Heritage Foundation's Overcriminalized.comparticularly geared toward policy makers.