Progressives Want to Send Innocent People to Jail…to Set an Example?
[Ed- This article speaks of a subject of direct importance to those in positions of responsibility in nearly every business, especially those responsible for OSH Act compliance.]
Should society throw people into jail who admittedly did nothing blameworthy just to set an example for others? That is exactly what the Center for Progressive Reform has suggested doing in a recent report on the Occupational Safety and Health Act.
In criminal law, the Supreme Court has embraced what is known as the “responsible corporate officer” doctrine, or, as it sometimes is called, the Park doctrine, after the 1975 Supreme Court case that embraced it. Under this doctrine, a corporate officer is personally criminally liable for the actions of his or her employees, regardless of whether the corporate officer knew or should have known of the criminal conduct. The responsible corporate officer doctrine creates a strict liability offense, where the only requirement to convict is that the corporate officer had authority to exercise control over the activity.
In United States v. Park, the FDA prosecuted the president of a corporation under the theory that subordinates committed violations of the Food, Drug, and Cosmetic Act that he had the ability to prevent or correct. Park, the company president, had delegated responsibility to correct the violations to one of his employees, who, unfortunately for Park, did not carry through on his responsibilities. Park therefore was convicted for FDA violations that he did not commit, order committed, or conspire to commit.
At trial, all the government needed to prove was that Park was the president of the corporation and could have prevented the violation. The government did not need to prove that Park acted irresponsibly or even negligently. The Supreme Court, relying on some early 20th century precedents, upheld Park’s conviction by invoking the responsible corporate officer doctrine.
Who would be in favor of such an unjust rule that places innocent people in jail, separates families, and ruins careers? Professor Thomas McGarity from the Center for Progressive Reform answers that question. In a recent interview where he argued in favor of a more aggressive application of the responsible corporate officer doctrine, McGarity stated:
“I think once Obama wins this election, it will be time for progressives to put a great deal of pressure on Obama to do things progressively. I don’t think he will be able to ignore us if he wins this election…You make an example of a few scofflaw employers. You would go after not just the [sic] the corporation, but the corporate official and you would put him in jail.”
The criminal justice system is in place to deter and punish morally culpable behavior. The responsible corporate officer doctrine does neither. It punishes people with the weight of the criminal law for the position that they hold within an organization. Under the common law, a cornerstone of the criminal law is that the government, in addition to proving that a person committed an unlawful act, is required to prove that the accused intended to commit the crime.
The responsible corporate officer doctrine transforms all corporate crime requiring negligence into strict liability offenses; meaning, there is no intent requirement. If there were proof that a corporate officer knew or acquiesced to criminal conduct, the government wouldn’t need to rely on the responsible corporate officer doctrine to convict him.
Further, the person who is strictly liable is not the person who acted unlawfully. It is impractical for a corporate officer to handle the responsibilities of all his employees. If a corporate officer is capable of handling all of those responsibilities himself, why would he need employees at all?
The responsible corporate officer doctrine turns the job of a corporate officer into a gamble. Corporate officers have to bet their freedom that employees will perform their duties lawfully in an environment of thousands of regulations. A loss on that bet could land them in prison. There are ways to promote workplace safety without throwing blameless men and women in prison. Rather than expanding the use of the responsible corporate officer doctrine, justice requires that it should be done away with.
- Guest Blogger Kathleen Boozang: A New Insurance Product: Responsible Corporate Officer Defense Insurance (lawprofessors.typepad.com)