Comparative Study on Corporate Criminal Liability in the United States of America and Germany

In the United States, corporations as entities, can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively unique. Few other Western states impose entity liability, and those that do impose such liability comparatively infrequently and under the threat of far less serious punishment. The question of why the United States and only the United States imposes corporate criminal liability has been the subject of limited scholarly attention. This article seeks to fill that gap through the prism of comparative law. The German law, which imposes no corporate criminal liability, is considered as a counter point. The article argues that the American doctrine can be explained well not through criminal theory but rather through criminal procedure. American criminal procedure imposes unique difficulties on American investigators and prosecutors seeking to root out individual white-collar criminals. However, it also grants powers to those prosecutors that are unknown to their German counterparts. Among them is the power to threaten criminal indictment, one that allows prosecutors to force American corporations to cooperate, to waive the attorney-client privilege, and to stop ties with individual employees under investigation, thereby facilitating the prosecution of those individual defendants. Using differences in criminal procedure rather than criminal theory to explain the uniquely American doctrine, this article concludes by suggesting how the criminal procedure approach can be used well to understand and potentially to reform an American system that growing critics are made against it.