This is the question raised by Prof. Bennett Gershman, and co-blogger Joel Cohen, in their latest blog post in the Huffington Post. Gershman and Cohen write that in certain circumstances–where public health and safety is involved–executives can be held accountable for wrongdoing in their companies, even if they were not even aware of it, under what has become known as the the “responsible corporate officer doctrine” of criminal liability.
They write: “And under this doctrine, a defendant is exposed to very substantial jail time as well as other punitive consequences. The power of prosecutors to bring this type of charge for crimes that the law refers to as crimes of ‘strict liability’ stems from the potential for health care products and food products to cause serious injury and even death. Under the 1938 Food, Drug and Cosmetic Act, as interpreted by the U.S. Supreme Court, prosecutors can bring criminal charges against corporate officers without any evidence that the officer actually knew that a crime was committed. The result is typically ‘guilty as charged.'”
Gershman and Cohen ask: “But don’t we risk the bedrock principle of American justice that a person should be morally blameworthy before we punish him, particularly at a time when prosecutors increasingly have powerful weapons to criminalize business activities that previously were never the subject of criminal enforcement, and cause risk-averse executives to cut their losses and plead guilty to lesser offenses? Is that the way the justice system should operate — bringing prosecutions that basically extract lesser misdemeanor guilty pleas, merely because, to use a somewhat parallel example, a corporate executive was sitting in the driver’s seat when a defective wheel (which should have been checked out by a grease monkey in the motor pool operating loosely under the executive’s line of authority) fell off the car while he was driving, causing another person’s serious injury or death?”
Read the whole piece here.