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The Use of Criminal Statutes to Regulate Product Safety: Comment on Wheeler

MALCOLM WHEELER has presented a persuasive brief against the use of criminal sanctions for corporations in defective product cases. He argues that criminal proceedings in such cases are (a) redundant, given the effectiveness of civil and administrative alternatives; (b) costly to taxpayers; (c) error prone; and (d) heavy handed, with no capacity for "fine tuning." His argument is effective but not entirely satisfying intellectually; we are left with a sense that he has marshaled more arguments than necessary to make his case, without identifying that which is essential. If we were able to rebut each of his points successfully, one by one, at which point would he change his conclusion? In short, what are the principles that define the proper domain of the criminal law? My discussion identifies and discusses two such principles in the list of arguments presented by Wheeler. First, however, is a brief digression on the distinction between criminal liability for corporations and for natural persons. When an employee (or group of employees) allegedly violates a general criminal statute (reckless homicide) or a regulatory statute that includes criminal sentencing provisions (price fixing), then that employee is of course subject to criminal prosecution. If the alleged crime arises from a job-related action that is intended to benefit the corporate employer, then the corporation may be subject to criminal sanctions, at least if the decision is authorized by senior corporate officials, even if only by implication.' It of course remains true that the corporation remains civilly liable by the same strict doctrine of vicarious liability that is applicable to natural persons who are also employers. It should be emphasized that