In the United Kingdom, the Corporate Manslaughter and Corporate Homicide Act of 2007 enables corporations to be punished in the criminal courts for wrongful conduct leading to a person’s death. Such a manslaughter conviction typically would require that the prosecutor show that the defendant corporation acted with conscious disregard of a substantial and unjustifiable risk that death would occur, under circumstances manifesting extreme indifference to the value of human life.
This prosecution, and the ultimate punishment upon conviction, would be in addition to any compensation or other damages that might be awarded against the corporation in civil litigation, and would be in addition to any criminal prosecution of an individual (including a manager, employee or contractor of the corporation) arising from the same occurrence.
Even before the passage of this law, the pursuit of criminal charges against U.K. corporations was not without precedent. In 1994, England prosecuted an adventure tour company for corporate manslaughter arising from the Lyme Bay kayaking tragedy that resulted in the drowning deaths of four teenagers. The tour company ultimately was fined Pounds 60,000, and one of the company’s directors also was sentenced to three years’ imprisonment. Even in the U.S., the notion of prosecuting a corporation for homicide or manslaughter in the criminal courts is not a novel idea.
However, the last homicide prosecution actually brought against a major American corporation was in 1980, when an Indiana prosecutor charged Ford Motor Co. with homicide after three teenage girls died when their Ford Pinto caught fire after being rear-ended. The prosecutor alleged that Ford knew that it was marketing a defective product, with a gas tank that crushed when the vehicle was struck from behind, spilling fuel, which caught fire and incinerated the three young girls. Ford ultimately secured a not-guilty verdict in that case after convincing the judge to keep key evidence out of the jury room.
Similarly, it has been urged in recent years that corporate criminal charges be brought against major polluters, as well as tobacco, chemical and pharmaceutical manufacturers that are accused of knowingly marketing dangerous and potentially deadly products. However, no such prosecutions have yet been undertaken to date, as no criminal prosecutor seems willing to weather the political storm that would invariably arise from doing so.
In the U.S., corporate homicide typically is addressed in the civil courts, which allow the victim’s family to bring a wrongful-death claim seeking damages (both compensatory and punitive) against the responsible defendant corporation. Such claims normally are brought under state law in the jurisdiction where the death occurs, typically by virtue of a state wrongful death statute.
While the concept of corporate homicide prosecution in the U.S. criminal courts has been discussed from time to time, it has been criticized by most legal scholars. One viewpoint recognizes that corporations cannot be made to “go to jail” for the homicide, so the only punishment available would be a financial penalty. The same punishment can be obtained more efficiently through private litigation in civil courts under circumstances requiring much more limited government resources and a much lower standard of proof.
Many also feel that civil damages are a more appropriate means of punishment for death resulting from corporate wrongdoing, because the civil courts typically award compensation and other damages in a manner that is commensurate with the extent of the harm or damage done; therefore, such suits tend to apply the appropriate level of punishment and deterrence against the corporation.
If the criminal courts are going to be used to punish corporate wrongdoing, many believe that the better approach is to charge, convict and punish the individual corporate decision-makers who were responsible for the wrongful conduct, based on the notion that a corporation only can act through the acquiescence of its directors, officers and managers. Most believe that the potential for imprisonment of a high-level company manager creates a much greater influence on the conduct of other company managers. In contrast, a potential criminal fine against the corporation itself ultimately would punish the shareholders, customers and employees in general, rather than the culpable managers, thus doing little to motivate managers to change dangerous corporate policies.