united-states criminal-law corporate-law
Are there any limits on the crimes a corporation can be convicted of?
<p>In the United States, a corporation can be convicted of criminal offenses (<a href="http://www.justice.gov/opa/pr/five-major-banks-agree-parent-level-guilty-pleas">example</a>). Can corporations be charged with any criminal offense, or are there some that cannot apply to anything except a human being? I'm interested in formal limits established by statute, caselaw saying a corporation can't satisfy the elements of certain crimes, and/or practical considerations making it essentially impossible to convict them of some kind of crime.</p>

<p>While I'm especially interested in the US, I'd also be interested in other countries. </p>

<p><strong>This answer assumes Europe as jurisdiction, not the United States.</strong></p>

<p>This will vary wildly across jurisdictions,  but given that this question is unanswered for two weeks now, I will provide an answer for Europe, specifically the Czech Republic. It will be somewhat different in other states.</p>

<p>First, the list of criminal offenses a corporation can commit is specified in the law. It is exactly that, a list. Of the 300 crimes an individual can commit here, about 100 of them can also be done by a corporation.  </p>

<p>It is hard to discover why these hundred crimes were chosen specifically. Logic used to make this list eludes me. For example, a corporation can commit <em>Rape</em>, but not <em>Murder</em>. It can commit a <em>Terrorist attack</em> but not <em>Terror</em>. It can commit <em>Threatening a public official</em> but not <em>Oppression</em>.</p>

<p>I looked through the explanatory notes for the law and I discoved the reason: Strictly only those crimes were created for corporations that were required by higher european law, which only moves the question higher up. I did not look up what the European Parliament had to say about this.</p>

<p>There is one crime that was added specifically, later on, to the list, and that is <a href="https://en.wikipedia.org/wiki/Usury">Usury</a>.</p>

<p>In principle, all crimes committed by an individual can be done by a corporation, because a crime is considered to be committed by a corporation if the action is done by an employee in the name of the corporation.</p>

<p>Since we have an answer for the Czech Republic, let me provide an answer for England and Wales.</p>

<p>First, corporations as a rule should not be treated differently to natural persons.</p>

<blockquote>
  <ol start="4">
  <li>A company is a legal person, capable of being prosecuted, and should not be treated differently from an individual because of its artificial personality.</li>
  </ol>
</blockquote>

<p>[This is from the official guidance of the Crown Prosecution Service, the public prosecutor in England and Wales.]</p>

<p><a href="http://www.cps.gov.uk/legal/a_to_c/corporate_prosecutions/#a02">http://www.cps.gov.uk/legal/a_to_c/corporate_prosecutions/#a02</a></p>

<p>However, a corporation <em>is</em> different to a natural person in two ways. First, it is only capable of acting through its agents—directors, employees, shareholders and so on. So the corporation can only be guilty in the sense that a crime is committed by a natural person on its behalf. But then you have the question, when is a person acting on behalf of a corporation, and when is a person acting as a private individual?</p>

<p>So, for some crimes, it is a clear defence for the corporation to say, "the person was not acting on behalf of the corporation". </p>

<blockquote>
  <p>A company cannot be criminally liable for offences which cannot be committed by an official of a company in the scope of their employment, for example rape.</p>
</blockquote>

<p>Second, the corporation cannot be sent to prison, it can only be fined. So if an offence requires a custodial sentence, it cannot (in common law) be committed by the body corporate.</p>

<blockquote>
  <p>The offence must be punishable with a fine (this excludes murder, treason, piracy).</p>
</blockquote>

<p><a href="http://www.cps.gov.uk/legal/a_to_c/corporate_prosecutions/#a05">http://www.cps.gov.uk/legal/a_to_c/corporate_prosecutions/#a05</a></p>

<p>In some cases it has been felt desirable that a corporation should be punished for manslaughter and other serious crimes perpetuated by its agents. Parliament has acted to create a specific offence of corporate manslaughter. No doubt other jurisdictions have similar provisions. <a href="http://www.legislation.gov.uk/ukpga/2007/19/section/1?view=plain">http://www.legislation.gov.uk/ukpga/2007/19/section/1?view=plain</a></p>

<p>I would imagine that many States in the United States apply similar principles.</p>

<p>In the United States, a defendant can only be convicted of a crime if they meet certain <em><a href="https://en.wikipedia.org/wiki/Mens_rea" rel="noreferrer">mens rea</a></em> requirements. There are some crimes that do not have this requirement, but they are required to be less serious crimes.</p>

<p>A corporation has no mind. It therefore cannot have a "guilty mind" required for the <em>mens rea</em> requirement. We have therefore developed two ways of holding corporations liable for bad acts. These theories are not uniformly adopted. There are a series of department of justice memos (see, e.g., <a href="http://www.justice.gov/sites/default/files/criminal-fraud/legacy/2010/04/11/charging-corps.PDF" rel="noreferrer">the McNulty Memo</a>) establishing the federal government's approach to this issue, but remember the DOJ doesn't make law and so it is up to courts to determine if they "buy" the approaches used by the DOJ (or other prosecuting entities).</p>

<p>The first theory is one of <a href="https://en.wikipedia.org/wiki/Respondeat_superior" rel="noreferrer">respondeat superior</a>. It holds basically that the corporation can be held liable as employer for the bad acts of its employees. This theory is highly constrained, since at common law we usually don't hold a real person employer liable for <em>crimes</em> of their employees (only for torts).</p>

<p>The second theory is a "legal fiction" of consciousness. We simply determine that if one or many managers are aware of an act, that the corporation is deemed to have the relevant awareness.  This gets even more "fictional" for crimes where the <em>mens rea</em> is not mere knowledge but purpose.</p>

<p>A third possibility involves holding the corporate entity liable for "aiding" or "conspiring" or "soliciting" the commission of a crime. This approach is troubled because traditionally one can only be found to have "conspired" if one had a certain <em>mens rea</em> so this doesn't really resolve the problem.</p>

<hr>

<p>To address your exact question: Corporations can be convicted of any crime so long as they have the relevant <em>mens rea</em> and performed the <em>actus reus</em> causing the harm.  So there are not "limits" on the crimes they can be convicted of in any hard sense; it's just very challenging to satisfy the mens rea requirement in any non-fictional sense and this has lead courts to be very reluctant in applying criminal sanctions. In practice this has meant that corporations are mostly prosecuted for conduct that relates to business in some commonsense way. But this isn't always the case. For example, <a href="http://www.justice.gov/usao-ndca/pr/fedex-indicted-its-role-distributing-controlled-substances-and-prescription-drugs" rel="noreferrer">FedEx was indicted</a> for smuggling controlled substances and in some ways treated like an ordinary drug dealer might be.</p>
