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Why Punish Corporations for Their Employees’ Crimes?

Punishing corporations for crimes committed by their employees is not unlike the ritual sacrifice of inanimate objects under early English common law. One would think that after so many centuries, we would have made more progress in the rational administration of justice.

LONDON – Under English common law from the eleventh century until 1846, an inanimate object or an animal that caused a person’s death would be forfeited, becoming what was referred to as a “deodand.” Thus, when William Swan fell into a well and drowned in Wigston, England in 1397, the coroner ordered the destruction of the well. Likewise, chattels that caused a person’s death were given to God or to his representative on Earth, the monarch.

Such deodands also were offered up to the relevant authorities in colonial America. When George Bollington died from falling off a horse in Virginia in 1664, the horse was forfeited to the governor. And as William Bradford recounts in Of Plymouth Plantation, when the colonist Thomas Granger was executed for bestiality in 1642, the farm animals that he had abused were sacrificed alongside him.

From today’s perspective, punishing inanimate objects and animals for criminal acts that they do not have the agency to have committed seems absurd. Yet what is one to make of Goldman Sachs’ recent settlement with the US Department of Justice, whereby it will pay a $2.8 billion fine for its work – including aiding in the embezzlement of billions of dollars – with the corrupt Malaysian government fund 1Malaysia Development Bhd (1MDB)? If one views criminal culpability as a matter involving individual human beings, it seems odd that an inanimate legal construct – a corporation – could be the one found guilty of committing a crime.

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