Source: (2007) American Criminal Law Review. 44(4): 1307-1318.
Increasing calls for limits on the use of corporate criminal liability naturally follow periods of heightened regulatory scrutiny. … In this article, we ask how the principles and practices of making amends or restorative justice connect with standards of corporate culpability and liability and, ultimately, questions of fairness. … Over the last 100 years, the attention given to corporate punishment has dramatically overshadowed efforts to make sense of the connections be-tween and among corporate personhood, liability, and culpability. … It is of little surprise then, that corporate making amends has now emerged as the preferred sanction to address the harm done to multiple stakeholders, while minimizing the stigma and costs to corporations and their shareholders of the most formal of social controls–the criminal law. … For example, the general part of the corporate criminal law remains wedded to vicarious liability. … We find this com-parative dearth of large-firm prosecution troubling. … Making-amends, understood as ex ante adopting a compliance program and ex post paying reparations, is an inadequate basis for excusing a firm from punishment. … In a classic ad-versarial effort to further shift the risks of liability away from large firms, those who fight the corporate criminal law by calling it costly, inefficient, heavy-handed, and too strictly enforced, bless restorative plea agreements. (Excerpt).
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