At National Review, Andrew McCarthy writes about the history, and what he regards as the extreme inherent injustice, of the "responsible officer doctrine," which allows corporate officers to be prosecuted for criminal acts of their companies, regardless of whether they participated in or even knew of such acts. McCarthy, a former federal prosecutor, calls for substantive reform:
It is a bedrock principle of the criminal law that there may not be liability for a bad act in the absence of bad intent — mens rea. In fact, this is the principle that FBI director James Comey was purporting to defend — not very convincingly — when the Obama Justice Department strained to avoid indicting Hillary Clinton for mishandling classified information. The requirement of mens rea for criminal liability does not mean absent-minded wrongdoers are off the hook for the damage they cause, not by a long shot. We have a very elaborate civil-justice system to address just such harms. It is not unusual for civil judgments to run into the tens of millions of dollars. If the suffering caused by a corporation is significant, civil lawsuits, including lawsuits brought by the Justice Department and government regulatory agencies, can put the company out of business.
What were the limits on this new license to convict the innocent? Justice Felix Frankfurter opined that they would be “too treacherous to define,” choosing instead to trust “the good sense of prosecutors, the wise guidance of trial judges, and the judgment of juries.” Of course, the point of the criminal law’s protections — the requirements that guilt is personal, that laws must put people on fair notice of what personal actions are forbidden — are precisely meant to ensure that people are not at the tender mercies of prosecutors (whose “good sense” can be overcome by ambition and ideological activism) and the emotionally driven crapshoot that a jury trial can be.
The full piece can be found here: "Prison is for the Guilty," National Review Online, February 25, 2017.
McCarthy's bio at National Review reads as follows: "Andrew C. McCarthy III is a former assistant U.S. attorney for the Southern District of New York. He led the 1995 terrorism prosecution against Sheikh Omar Abdel Rahman and eleven others. The defendants were convicted of the 1993 World Trade Center bombing and of planning a series of attacks against New York City landmarks. He also contributed to the prosecutions of terrorists who bombed U.S. embassies in Kenya and Tanzania. He resigned from the Justice Department in 2003. He is a contributing editor of National Review and a senior fellow at the National Review Institute."