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Article Excerpt
I. INTRODUCTION
Recent corporate scandals--Enron, WorldCom, HealthSouth, Tyco, Adelphia, Cendant, and more--have refocused attention on efforts to reign in corporate wrongdoing. Criminal enforcement, and in particular prosecuting individuals, can be one of the government's most powerful tools for combating corporate misconduct, but such prosecutions can be tricky. Our intuition may be to hold responsible those upper-level corporate officers and managers who allow illegal conduct to occur on their watch. But criminal liability in our society has historically, and appropriately, been quite circumscribed. Courts interpreting criminal enforcement provisions of statutes tend to assume that Congress legislated consistently with traditional principles of criminal law, which balance the objective of enforcing the rule of law with competing concerns, such as due process. The predominance of collective action and shared responsibility in business organizations can make it difficult to pin criminal liability on particular individuals acting within such organizations without overstretching traditional criminal law principles. The challenge, therefore, is to hold individuals accountable for wrongdoing to which they contributed, but in a manner that comports with general principles of criminal law.
The responsible relation doctrine is one way in which such liability may be imposed, and it therefore warrants reexamination. The responsible relation doctrine holds individuals criminally liable for failing to prevent or correct violations that occur within their area of responsibility and control in a business organization. The origins of the doctrine in American jurisprudence are commonly traced back to two seminal Supreme Court cases, United States v. Dotterweich (1) and United States v. Park, (2) both of which upheld convictions of corporate executives for misdemeanor offenses based on their failure to prevent violations of the Federal Food, Drug, and Cosmetic Act (FFDCA), (3) without requiring proof that the defendants knew of the violations. Dotterweich and Park relied heavily on the idea that, although a duty to prevent violations was potentially onerous, such an obligation was necessary to effectuate the statute's purpose of protecting human health and safety. (4)
Examinations of the responsible relation doctrine have uncritically accepted this public welfare rationale. Scholars and commentators analyzing Dotterweich, Park, and their progeny have tended to treat this line of cases as unique and self-contained, accepting as given that the public welfare rationale set forth in Dotterweich and Park determines, as one scholar put it, "the content, limits, and fairness" (5) of the responsible relation doctrine. (6) Moreover, existing analyses of the responsible relation doctrine focus almost exclusively on the link between the doctrine and the mental state elements of a criminal offense, and frequently mischaracterize that link. (7) In fact, although it is now relatively well-settled in the case law that the responsible relation doctrine does not affect statutory mental state elements, much of the commentary on the doctrine mistakenly continues to describe it as principally affecting mental state. (8) The responsible relation doctrine's relationship to the act elements of the offense, by contrast, has rarely been explored.
The legitimacy of the responsible relation doctrine as a basis for imposing criminal liability in any circumstance should depend, like any other judicially created doctrine of criminal law, on whether the doctrine can be explained by reference to widely accepted principles of criminal law. But the upshot of the two aforementioned analytical shortcomings--an uncritical acceptance of the public welfare rationale and misguided focus on mental state--is that the doctrine has really not been rigorously tested; we do not know whether responsible relation liability follows from generally accepted criminal law principles. Moreover, without a clear explanation of how and why the doctrine is a legitimate basis for criminal liability, it is impossible to determine where the doctrine should and should not apply. In short, before it is ready to be considered for more widespread application and acceptance, and indeed before we can be sure that the doctrine is acceptable in any application, the responsible relation doctrine needs a robust defense.
This Article suggests a rethinking of the responsible relation doctrine. It starts from the premise that, because the responsible relation doctrine is judicially created, its validity as a basis for criminal liability depends on whether it is rooted in, and consistent with, generally accepted and generally applicable principles of criminal law. (9) In other words, if the responsible relation doctrine follows from general principles of criminal liability, then it is a fair inference that the legislature intended the doctrine to apply to offenses that meet the doctrine's requirements, absent a contrary indication in the language, structure, or purpose of the statute that defines the offense.
The Article begins in Section II by reviewing Dotterweich and Park, the two seminal Supreme Court cases that established the doctrine. Section III then uses Dotterweich, Park, and the substantial body of case law that has addressed the doctrine's application to felony violations of federal environmental laws (10) to demonstrate that, although much of the scholarly attention on the doctrine has focused on its relationship to mental state, in fact the doctrine addresses the act elements of a criminal offense and not mental state. Section IV shows that the conventional public welfare explanation for the doctrine, which argues that the doctrine provides added and important deterrence of legal violations that threaten human health and safety, does not provide a principled justification for the doctrine. Section V explains that the doctrine also cannot be justified as a form of aiding and abetting liability. Section VI argues that the responsible relation doctrine is best understood and defended as properly following from traditional criminal law prohibitions on acts of omission, and specifically from the principle that individuals may be criminally liable when their failure to fulfill their employment responsibilities results in a harm that is punishable as a crime. Section VII explains that, examined through this lens, the responsible relation doctrine can justifiably be applied in a variety of contexts in which a defendant's employer gives him the responsibility to prevent violations of the law. Finally, Section VIII discusses some insights into the operation of the responsible relation doctrine that are highlighted by identifying the doctrine as a species of criminal omission.
II. THE ORIGINS OF THE RESPONSIBLE RELATION DOCTRINE
Any analysis of the responsible relation doctrine in American jurisprudence must begin with a detailed examination of Dotterweich (11) and Park. (12) Dotterweich was president and general manager of the Buffalo Pharmacal Company, a pharmaceutical corporation. (13) Buffalo Pharmacal shipped some misbranded and adulterated drugs, and the government prosecuted both Dotterweich and Buffalo Pharmacal for criminal violations of FFDCA. (14) The jury hung as to Buffalo Pharmacal and convicted Dotterweich. (15) The court of appeals reversed, holding that the FFDCA should be construed narrowly and that individuals were subject to prosecution for violations of the FFDCA only by piercing the corporate veil--by showing that "an individual operated a corporation as his 'alter ego' or agent." (16)
The Supreme Court reversed the court of appeals and upheld the convictions, holding that the FFDCA should be construed broadly, rather than narrowly, in order to effectuate its purpose of protecting "the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection." (17) The FFDCA was a
now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct--awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. (18)
The Court acknowledged that penalizing individuals with a responsible relationship to the violation, even where there was a lack of intent, could impose a hardship when it reached those without "consciousness of wrongdoing," but concluded that this potential hardship reflected Congress' determination that the balance of hardships favored giving the responsibility to avoid violations of the FFDCA on "those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless." (19) Finally, the Court declined to define which employees stand in responsible relation to a violation, deferring to "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries" (20)
Dotterweich was clearly being held liable for a failure to prevent a violation of the FFDCA; there was no suggestion that Dotterweich had participated in or affirmatively assisted with the shipments of misbranded and adulterated drugs. But the Dotterweich majority did not speak of the "responsible relation" standard in terms of omissions. Instead, the Court seemed to see the "responsible relation" as probative of determining who could be prosecuted for a regulatory violation despite a lack of conscious wrongdoing. (21) In a dissent, however, Justice Murphy criticized the majority's "responsible relation" standard for allowing a conviction without active participation and without knowledge. (22) Justice Murphy noted that it was "inconsistent with established canons of criminal law to rest liability on an act in which the accused did not participate and in which he had no personal knowledge," and opined that such canons should not be overridden without a clear indication from Congress that it intended vicarious liability for corporate officers. (23)
Park followed Dotterweich by more than three decades, but in many ways reads as a companion case. Park was the chief executive officer of Acme Markets, Inc., a national retail food chain. (24) When it was found that Acme was storing food in a rodent-infested warehouse in Baltimore, the government charged both Acme and Park with five counts of violating the FFDCA, the same statute under which Buffalo Pharmocal and Dotterweich were prosecuted. (25) Acme pied guilty, but Park went to trial. (26) At trial, the government proved that the Food and Drug Administration had advised Park of unsanitary conditions in Acme's Philadelphia and Baltimore warehouses. (27) Acme took some corrective actions that improved, but by no means remedied, the conditions. (28) The jury found Park guilty on all counts. (29) The court of appeals reversed, holding that the jury instructions allowed the jury to convict Park without finding that he had acted wrongfully by either omission or commission and that this improper instruction violated due process. (30)
As in Dotterweich, the Supreme Court reversed the court of appeals and reinstated the convictions. The Court held that the government could establish a prima facie case for a violation of the FFDCA by showing "that the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do SO." (31) The defendant's duty to prevent or correct violations arose "by the interaction of the corporate agent's authority and the statute," and this duty "furnishe[d] a sufficient causal link" to hold the defendant responsible for the violations. (32) The Court concluded that "the individuals who execute the corporate mission," by allowing violations to occur that threatened the public health and welfare, violated the public trust:
The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them. (33)
Thus, Dotterweich and Park established the proposition that, for some criminal offenses, liability attaches not only to those who directly participated in the violation but also to their supervisors or managers who stand in "responsible relation" to the violation by virtue of their authority and responsibility. This concept is the responsible relation doctrine. But Dotterweich and Park do not clearly explain from what authority the doctrine is derived, how the doctrine relates to the elements of the offense, and to what offenses (other than the FFDCA) it applies.
III. THE IRRELEVANCE OF MENTAL STATE
A. DOTTERWEICH AND PARK
Dotterweich and Park are in many ways remarkably similar. They involved similar factual situations: chief executive officers prosecuted for violations in which they did not actively participate. They presented similar legal questions: what is required to establish a criminal violation of FFDCA. They reached similar holdings: defendants with a responsible relation to violations of FFDCA can be guilty of criminal violations even without intent or direct participation in the violations. But the Court's focus differed greatly between the two cases. Dotterweich thoroughly intermingled its discussion of the FFDCA's mental state elements and act elements and left quite unclear whether the "responsible relation" standard it announced was intended to address both mental state and act elements, only mental state elements, or only act elements, or whether the test applies a form of vicarious liability that requires neither mental state nor conduct. (34) Park, on the other hand, noted that the FFDCA does not require intent, but focused overwhelmingly on explaining that the responsible relation doctrine addressed the FFDCA's act elements by establishing a causal relationship between the defendant's omission and the violation of the FFDCA. (35)
Dotterweich and Park clearly used a public welfare rationale to justify imposing liability without a showing of intent and liability through omission. It thus would be easy to jump to the conclusion that the responsible relation doctrine implicates both mental state elements and act elements (here, failure to act) of an offense. Although both factual characteristics were present in Dotterweich and Park, and the Court invoked the responsible relation standard in both cases, the standard does not necessarily implicate both mental state and act elements. Nor is there anything in the Court's analysis in Dotterweich and Park suggesting that liability without intent and liability through omission necessarily operate in tandem in a way that requires or favors lumping them together in a single responsible relation doctrine. If the responsible relation doctrine does not involve both liability without intent and liability through omission, which does it address?
It is difficult to extract an answer to this question from Dotterweich and Park, because those cases involved both liability without intent and liability through omission, and because their discussions of the doctrinal basis for the responsible relation doctrine are so opaque. If the Court in Dotterweich or Park had explained the derivation of the responsible relation standard thoroughly, its explanation might have provided some further insight into what relationship the Court perceived between the standard and the statutory elements of an offense. But Dotterweich and Park are quite lacking in this respect. Dotterweich did not cite a single case in support of its explication of the doctrine; the Court essentially announced the conclusion without a supporting rationale. (36) Park cited a series of state court cases for the proposition that a defendant's "power to prevent the act complained of" had been previously deemed "sufficient" and "enough" to hold him liable, without explaining why it was sufficient. (37)
Nevertheless, there are strong indications from Dotterweich and Park, especially Park, that the responsible relation doctrine pertains only to act elements and does not involve mental state. Park certainly did not state such a proposition outright. Park's procedural posture could explain why the Court in that case focused on the FFDCA's act elements instead of mental state: this issue is the one on which the court of appeals erred. But Park, by focusing on the nexus between the responsible relation standard and the FFDCA's act elements without identifying a similar nexus between the test and the FFDCA's mental state elements, is at least susceptible to the interpretation that the responsible relation standard addresses only conduct and not mental state. At the very least, Park's emphasis on conduct, as opposed to mental state, indicates that the Court did not see the responsible relation standard as primarily addressing mental state elements.
An additional aspect of Dotterweich and Park provides stronger support for the position that the responsible relation standard addresses only conduct and not mental state. The statute at issue in Dotterweich and Park, the FFDCA, does not require intent for any defendant, whether he directly participated in a violation of the FFDCA or is liable by virtue of the responsible relation test. (38) It makes no sense to construe Dotterweich and Park to use the responsible relation doctrine to address mental state elements because the FFDCA does not have a mental state element. (39) Thus, a close reading of Dotterweich and Park clearly suggests that the responsible relation doctrine does not affect the mental state elements of a statute.
B. FEDERAL ENVIRONMENTAL CASES
Application of Dotterweich and Park's responsible relation doctrine in cases outside the FFDCA context confirms the conclusion that the doctrine pertains to act elements, not mental state. Courts have applied the responsible relation doctrine in a number of different settings other than the FFDCA, including meat inspection regulations, (40) state sales tax laws, (41) and alcoholic beverage control laws. (42) In military law and international criminal law, an analogous theory is known as command responsibility. (43) The responsible relation doctrine has received the most widespread attention and application in the area of environmental offenses, principally under the major federal environmental statutes, (44) but also in some state court cases. (45) In that context, the responsible relation doctrine has been labeled the responsible corporate officer doctrine. (46) Although the term responsible corporate officer doctrine also has at times been applied to prosecutions under the responsible relation doctrine outside of the environmental context, (47) the remainder of this Article, unless otherwise specified, will use responsible corporate officer doctrine to mean the responsible relation doctrine as it has developed and been applied in environmental cases.
This Section traces the development of the responsible corporate officer doctrine in federal environmental cases and shows how this body of law demonstrates that the responsible relation doctrine pertains to act elements rather than mental state. Federal environmental cases provide a fruitful subject of analysis and explication of the responsible relation doctrine for several reasons. First, unlike the FFDCA involved in Dotterweich and Park, most criminal penalty provisions under the major federal environmental statutes require knowledge. The extent to which this difference affects the application of the responsible relation doctrine illuminates the relationship between responsible relation liability and mental state. (48) Second, the responsible relation doctrine has been applied to environmental felonies in a number of cases spanning a significant period of time, with the result that a relatively stable body of precedent has evolved. The history of the development of the responsible corporate officer doctrine shows that, over the period from the late 1970s to the 1990s, the doctrine developed from early confusion as courts struggled to decide whether and how the doctrine set forth in Dotterweich and Park could apply to environmental felonies, to the point where the doctrine came to be widely accepted as a basis for criminal liability and well-defined with clear requirements. (49)
1. Early Environmental Cases
The first reported case to apply the responsible relation concept to a major federal environmental statute was the Third Circuit's 1979 decision in United States v. Frezzo Bros. (50) The defendants, Guido and James Frezzo, owned and operated a mushroom farming business, Frezzo Brothers, Inc., that was caught discharging pollutants in water of the United States without a permit, in violation of the Clean Water Act (CWA). (51) The indictment specifically stated that the Frezzos were being charged as individuals in their capacities as...
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