Abstract
The responsible corporate officer (RCO) doctrine is, as a formal matter, an instance of strict criminal liability: the government need not prove the defendant’s mens rea in order to obtain a conviction, and the defendant may not escape conviction by proving lack of mens rea. Formal strict liability is sometimes consistent with retributive principles, especially when the strict liability pertains to the grading of an offense. But is strict liability consistent with retributive principles when it pertains, not to grading, but to whether the defendant has crossed the threshold from noncriminal to criminal conduct? In this essay, I review the two most plausible arguments supporting an affirmative answer in the context of the RCO doctrine. First, perhaps this doctrine reflects a rule-like form of negligence, akin to a rule that prohibits selling alcohol to a minor. Second, perhaps this doctrine expresses a duty to use extraordinary care to prevent a harm. Neither argument is persuasive. The first argument, although valid in some circumstances, fails to explain and justify the RCO doctrine. The second argument, a duty to use extraordinary care, is also inadequate. If “extraordinary care” simply means a flexibly applied negligence standard that considers the burdens and benefits of taking a precaution, it is problematic in premising criminal liability on ordinary negligence. If instead it refers to a higher duty or standard of care, it has many possible forms, such as requiring only a very slight deviation from a permissible or justifiable standard of conduct, placing a “thumb” on the scale of the Learned Hand test, identifying an epistemic standard more demanding than a reasonable person test, or recognizing a standard that is insensitive to individual capacities. However, some of these variations present a gratuitous or incoherent understanding of “negligence,” and none of them sufficiently explain and justify the RCO doctrine.
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Notes
United States v. Dotterweich, 320 U.S. 277, 281 (1943).
United States v. Park, 420 U.S. 658, 673–674 (1975).
See Aagard, A Fresh Look at the Responsible Relation Doctrine, 96 J. Crim. L. & Criminology 1245 (2006), endorsing the latter view. See also Petrin, Circumscribing the “Prosecutor’s Ticket to Tag the Elite”—A Critique of the Responsible Corporate Officer Doctrine, 84 Temple L. Rev. 283, 305 (2012). A recent Eighth Circuit opinion also interprets the RCO doctrine as not imposing vicarious liability. See United States v. DeCoster, 828 F.3d 626 (8th Cir. 2016) (“Under the FDCA … a corporate officer is held accountable not for the acts or omissions of others, but rather for his own failure to prevent or remedy ‘the conditions which gave rise to the charges against him.’ See Park, 421 U.S. at 675.”).
See Simons, Is Strict Criminal Liability in the Grading of Offences Consistent with Retributive Desert? 32 Oxford J. Legal Stud. 445, 450–458 (2012); but see Ashworth, A Change of Normative Position: Determining the Contours of Culpability in Criminal Law, 11 New Crim. L. Rev. 232 (2008).
At least for legal purposes. Some philosophers take a different position. See Brake, Elizabeth, and Joseph Millum, “Parenthood and Procreation,” The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), Edward N. Zalta (ed.), https://plato.stanford.edu/archives/win2016/entries/parenthood/.
See Simons, When is Strict Criminal Liability Just? 87 J. Crim. L. & Criminology 1075 (1997); Simons, Strict Criminal Liability in Grading, supra note 4.
320 U.S. at 285.
These are examples of directing or authorizing illegal conduct, cf. Meyer v. Holley, 537 U.S. 280 (2003).
The examples in the text are variations of the facts in DeCoster, supra.
See Abrams, Criminal Liability of Corporate Officers for Strict Liability Offenses—A Comment on Dotterweich and Park, 28 UCLA L. Rev. 463, 470–472 (1981); Petrin, supra.
535 F.2d 512 (9th Cir. 1976).
Park, at 674. Thus, the court in Park says, at 672:
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.
Abrams, supra at 470.
See Developments in the Law, Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv. L. Rev. 1227, 1263 n. 106 (1979):
The term “impossibility defense” … is a misnomer; a successful defense would not need to show that it was objectively impossible for the defendant to prevent the violation, only that he used extraordinary care but was still unable to prevent the violation, or that, by the nature of his position within the corporation, he was powerless to correct the illegal conditions.
To be sure, it is not clear whether the “highest care” duty and the impossibility defense are two distinct aspects of the RCO doctrine or instead are simply two ways of characterizing the “highest duty.”
Park, at 673–674.
Id., 677, n. 19.
See Simons, Tort Negligence, Cost–Benefit Analysis, and Tradeoffs: A Closer Look at the Controversy, 41 Loyola L. Rev. 1171 (2008). Many instances of inadvertent negligence and deficient-skill negligence might not fit this paradigm, however.
See Sect. 3.5, infra.
2 Macph 1347 (1864) (Scotland).
See Wis. J.I. Civ. 1020 (1989 & Supp. 2002):
While the rule never changes that a (person) (motor vehicle driver) (pedestrian) must exercise ordinary care, the degree of care or diligence which a person must exercise to come up to the standard of ordinary care varies with the circumstances naturally calculated to affect or increase the hazard of collision or injury. The greater the danger which is or may be apparent to an ordinarily prudent person under the circumstances existing, the greater must be the degree of care which must be used to guard against such danger.
The ordinary care which the law requires varies with the circumstances naturally calculated to affect or increase the hazard of injury or collision. (Under some circumstances, ordinary care may be a high degree of caution; whereas, under other circumstances, a slight degree of caution may be ordinary care.) The greater the danger which is or may be apparent to an ordinary prudent person under the circumstances existing, the greater must be the degree of care which must be used to guard against such danger.
See Ohio J.I. Civ. 7.10 (2001) (superseded by a more recent jury instruction):
1. NEGLIGENCE. What is negligence? Negligence is a failure to use ordinary care. Every person is required to use ordinary care to avoid injuring another person or another’s property.
…
4. ADDITIONAL—GREATER DANGER. The amount of care increases in proportion to the danger which reasonably should be foreseen. Ordinary care is a relative term. The test, though, is still ordinary care under the circumstances.
See also 1 Ohio J.I.-CV 401.11 (2012):
Ordinary care involving dangerous substances
The defendant(s) (distribute[s]) (sell[s]) (describe other activity) (gas) (electricity) (insert name of other dangerous substance) for (domestic) (commercial) purposes. (Gas) (Electricity) (Insert name of other dangerous substance) is an inherently dangerous substance. The defendant(s) in the use of ordinary care must use that degree of care that is proportionate to the danger. ….
N.Y. Pattern Jury Instr.—Civil 2:12 (2016).
Cal Civ. Code § 2100 (2016). See Mose, Comment, Wet ‘n Wilde: When Water Rides Should be Subject to the Highest Duty of Care, 63 U. Kan. L. Rev. 787, 796–799 (2015) (reviewing history of common carrier heightened duty); Zipursky, Sleight of Hand, 48 Wm. & Mary L. Rev. 1999 (2007) (at common law, common carriers were held to a heightened standard of care defined as more demanding than the ordinary care standard).
Curiously, California’s statutory duty also contains a simple reasonableness requirement: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” Moreover, in interpreting the statutory duty of common carriers, the California Supreme Court seemed to treat the duty as just an instance of the flexible care standard: “Common carriers are not … insurers of their passengers’ safety. Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier.” Lopez v. Southern Cal. Rapid Transit Dist. (1985), 40 Cal. 3d 780, 785.
In Chavez v. Cedar Fair, LP, 450 S.W.3d 291 (Mo. 2014), the court refuses to apply a higher standard of care to operators of amusement parks. In Gomez v. Superior Court, 113 P.3d 41 (Cal. 2005), the California Supreme Court (unlike the Missouri court in Chavez) applies the higher duty of common carrier to an amusement park and offers a useful review of the history of common carrier tort liability.
See Autor, Note, Bailment Liability: Toward a Standard of Reasonable Care, 61 S. Cal. L. Rev. 2117, 2131 (1988):
[An] important contribution by Lord Holt in Coggs v. Bernard [92 Eng. Rep. 107 (1703)], to traditional common law rules governing bailment liability was the introduction of varying degrees of care and negligence. Under this theory, the particular classification of bailment transaction determines the level of care required by law—either slight, ordinary, or great—and, accordingly, liability is imposed only for corresponding levels of negligence—gross, ordinary, or slight. Thus, a party held to a duty of slight care is liable for gross negligence; if the duty is one of ordinary care then liability will be imposed for only ordinary negligence; and if there is a duty of great care, the bailor is liable for mere slight negligence.
See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997), which rejected this view and is now widely followed. See also Hanson, Gautreaux v. Scurlock Marine, Inc.: The Fifth Circuit Corrects Its “Slight” Mistake and Holds Seamen to a Duty of Ordinary Prudence for Their Own Safety in Jones Act Negligence Cases, 72 Tul. L. Rev. 1023 (1997) (noting that earlier cases under FELA also used the slight negligence test).
See Hagg, Slightly-Gross: South Dakota’s Addiction to a Bad Comparative Negligence Law and the Need for Change, 59 S.D. L. Rev. 139 (2014); Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 484–489 (1953). Most courts today treat this rule as simply a precursor to a comparative fault apportionment rule.
Defining “slight” negligence raises an additional difficulty insofar as this is the standard for the negligence of a victim. For there are reasons to doubt that the standards of reasonable care for victims and injurers are truly symmetrical: it is one thing for a victim of a tort to be considered “negligent” for not properly caring for his or her own safety, and quite another for a tort injurer to be considered negligent for not properly caring for the safety of those he might injure. See Simons, Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law, 8 Journal of Tort Law 29 (2016); Stevens, Should Contributory Fault be Analogue or Digital?, in A. Dyson, J. Goudkamp, & F. Wilmot-Smith (eds.), Defences in Tort 247 (Hart Pub. 2015).
See Colo. J.I. Civ. 9.5 (4th ed. 1999 & Supp. 2000):
One carrying on an inherently dangerous activity such as the (insert an appropriate description, e.g., “transmission of electricity”) must exercise the highest possible degree of skill, care, caution, diligence and foresight with regard to that activity, according to the best technical, mechanical and scientific knowledge and methods which are practical and available at the time of the claimed conduct which caused the claimed injury. The failure to do so is negligence.
Tenn. T.P.I Civ. 4.21 (3d ed. 1997 & Supp. 2000):
Because of the great danger involved in (describe activity) a reasonably careful person will use extreme caution in that activity.
Contrast the following two Utah instructions, one requiring ordinary care, the second a higher standard of care: Utah M.U.J.I. Civ. 3.2 (1993):
A person has a duty to use reasonable care to avoid injuring other people or property. “Negligence” simply means the failure to use reasonable care. Reasonable care does not require extraordinary caution or exceptional skill. Reasonable care is what an ordinary, prudent person uses in similar situations.
Utah M.U.J.I. Civ. 3.8 (1993) (AMOUNT OF CAUTION REQUIRED FOR DANGEROUS ACTIVITIES):
Because of the greater danger involved, those who are engaged in [describe activity] are held to a higher-than-ordinary standard of care and must exercise extra caution for the protection of themselves and others. The greater the danger, the greater the care that must be used.
See Pa. Sugg. Stand. J. Instr. (Civ) § 13.90 (2013), Inherently Dangerous [Instrumentality/Material/Substance]:
[A person who] [A business that] [provides] [uses] an inherently dangerous [instrumentality/material/substance], such as the [high voltage electric current] [acids, corrosives, explosives] [provided] [used] by [name of defendant] in this case, must use the highest standard of care, using every reasonable precaution to avoid injury to everyone lawfully in the area.
Most courts today employ a negligence-like standard in determining whether a product is defectively designed: they inquire whether the risks posed by the existing design outweigh its utility, as compared to a reasonable, feasible alternative design. Some courts employing this standard have endorsed a more pro-plaintiff version, permitting liability even if a redesign was not technologically feasible at the time the product was distributed, so long as, based on the information about risks or technology known at the time of trial, a redesigned product would be feasible and would be a preferable alternative. This “hindsight” test is one possible understanding of “extraordinary care.”
See Mose, supra (courts sometimes impose “highest duty of care” on high risk rides); GAJICIV 60.020, Georgia Suggested Pattern Jury Instructions (January 2017), which is based on Ga. Code Ann., § 51-1-3 (2017):
2. Slight Negligence (Extraordinary Diligence)
In general, extraordinary diligence or care is that extreme care and caution that very careful and thoughtful persons use under the same or similar circumstances. (Applied to the preservation of property, extraordinary diligence or care means that extreme care and caution that very careful and thoughtful persons use in securing and preserving their own property.) The absence of such extraordinary diligence is termed slight negligence.
Mo. A.J.I. Civ. 11.01 (5th ed. 1996 & Supp. 2001):
The phrase “highest degree of care” as used in this [these] instruction[s] means that degree of care that a very careful and prudent person would use under the same or similar circumstances.
Monasmith v. Cosden Oil Co., 246 N.W. 623, 624 (Neb. 1933). The court went on to offer this equally unilluminating explanation: “and … gross negligence means just what it indicates, gross or great negligence.”
Similarly, it would be unintelligible to say that a person who was just barely justified in self-defense is slightly unreasonable in her use of force, simply because the force she inflicted was almost, but not quite, disproportionate to the force threatened.
This is an abbreviation because a precaution will almost always prevent numerous risks, and those risks should be aggregated—the probability of death (P1) × the seriousness of the harm of death (L1), should be added to the probability of a broken leg (P2) × the seriousness of that harm (L2), and so forth.
See Simons, Tort Negligence, Cost–Benefit Analysis, and Tradeoffs, supra.
See Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996); Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law (David G. Owen, ed., 1995).
See Simons, Negligence, 16 Soc. Phil. & Pol. 52, 78–81 (1999).
Note the Colorado jury instruction at note 27, supra, requiring an actor carrying on an inherently dangerous activity to “exercise the highest possible degree of skill, care, caution, diligence and foresight with regard to that activity, according to the best technical, mechanical and scientific knowledge and methods which are practical and available at the time …”
The discussion that follows draws on Simons, Tort Negligence, Cost–Benefit Analysis, and Tradeoffs; and Simons, Negligence.
See Wright, Standards of Care in Negligence Law.
See Keating, The Priority of Respect Over Repair, 18 Legal Theory 293 (2012); Simons, Jules Coleman and Corrective Justice in Tort Law: A Critique and Reformulation, 15 Harv. J. L & Pub. Pol. 849 (1992); Keeton, Conditional Fault in the Law of Torts, 72 Harv. L. Rev. 401 (1959).
See United States v. Starr, 535 F.2d 512 (9th Cir. 1976), in which the Ninth Circuit held that the “objective impossibility” instruction need not be given despite the claim of a food company’s secretary-treasurer that he had instructed the warehouse janitor to fix an infestation problem, because the defendant did not follow up to ensure compliance and did not learn of the janitor’s noncompliance until a second inspection a month later. The court reasoned that it is objectively possible for RCOs to anticipate and counteract subordinates’ shortcomings. See Bragg et al., Onus of Responsibility: The Changing Responsible Corporate Officer Doctrine, 65 Food & Drug L. J. 525, 527 (2010).
See Simons, Culpability and Retributive Theory: The Problem of Criminal Negligence, 5 J. Contemp. L. Issues 365 (1994), arguing that the minimum standard of criminal culpability should require some form of indifference to the rights of others; inadvertence to risks that does not flow from such indifference should be insufficient.
See Philip E. Johnson, Strict Liability: The Prevalent View, in 4 Encyclopedia of Crime & Justice 1518 (Sanford Kadish ed., 1983), which responds to Mark Kelman, Strict Liability: An Unorthodox View, in 4 Encyclopedia of Crime & Justice 1512 (Sanford Kadish, ed., 1983).
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Chancellor's Professor of Law and Philosophy, University of California, Irvine School of Law. I thank Eric Blumenson and participants at the Conference on Crime Without Fault: The Justifiability of Public Welfare Offenses and the Responsible Corporate Officer Doctrine, Georgetown Law School, March 30, 2017, for helpful comments.
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Simons, K.W. Can Strict Criminal Liability for Responsible Corporate Officers be Justified by the Duty to Use Extraordinary Care?. Criminal Law, Philosophy 12, 439–454 (2018). https://doi.org/10.1007/s11572-017-9431-z
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DOI: https://doi.org/10.1007/s11572-017-9431-z