	Introduction

Under federal law, corporations or most other legal entities may be criminally liable for the crimes of their employees and agents. Prosecutorial Discretion

		Generally

The decision to prosecute a corporation or its culpable employees or both is vested in the Justice Department. Here perhaps the most easily assessed factor is the strength of the case against the defendant or defendants. Federal Interests

Whether to proceed with a prosecutable case ordinarily turns on the nature and seriousness of the offense and the culpability of the defendants. The factors identified in the business organization guidelines include
pervasiveness of the wrongdoing within the corporation; the corporation's history of misconduct; the existence and performance of compliance programs; the corporation's timely and voluntary disclosure of wrongdoing; the corporation's cooperation; absence of obstruction; collateral consequences; restitution. Alternatives to Criminal Trial

Prosecutors have several alternatives to criminal trial. They also discourage agreements that shield individual corporate officers, employees, or agents from liability. Constitutional Rights

During a criminal investigation and throughout the course of criminal proceedings, corporations and other legal entities enjoy many, but not all, of the constitutional rights implicated in the criminal investigation or prosecution of an individual. First Amendment

The Supreme Court has stated often that corporations are entitled to First Amendment protections. Fourth Amendment

The Fourth Amendment condemns unreasonable searches and seizures. "[A] corporation has no Fifth Amendment privilege" against self-incrimination, nor does it have a right to grand jury indictment. Of the others, two—Due Process, and Double Jeopardy—either have been said to protect corporations or have been construed to protect corporations. Sixth Amendment

The Sixth Amendment guarantees anyone accused of a federal crime several rights: the right to notice of the charges, to the assistance of counsel, to a public and speedy trial before a jury where the crime occurred, to call witnesses, and to confront his accusers. Sentencing Guidelines

Corporations cannot be incarcerated. Otherwise, corporations and individuals face many of the same consequences following conviction. Corporations can be fined. They can be placed on probation. They can be ordered to pay restitution. Their property can be confiscated. They can be barred from engaging in various types of commercial activity. Corporations and individuals alike are sentenced in the shadow of the federal Sentencing Guidelines. Fines

The corporate fine Guidelines begin with the premise that a totally corrupt corporation should be fined out of existence, if the statutory maximum permits. A corporation operated for criminal purposes or by criminal means should be fined at a level sufficient to strip it of all of its assets. Consequently, the Guidelines recommend that the fine level be set so as to disgorge any illegally gotten gains that would otherwise be left to a corporation after the payment of its fine, compliance with the restitution order, or other remedial costs.
A corporation is criminally liable for the federal crimes its employees or agents commit in its interest. Corporate officers, employees, and agents are individually liable for the crimes they commit, for the crimes they conspire to commit, for the foreseeable crimes their coconspirators commit, for the crimes whose commission they aid and abet, and for the crimes whose perpetrators they assist after the fact.
The decision whether to prosecute a corporation rests with the Justice Department. Internal guidelines identify the factors that are to be weighed: the strength of the case against the corporation; the extent and history of misconduct; the existence of a compliance program; the corporation's cooperation with the investigation; the collateral consequences; whether the corporation has made restitution or taken other remedial measures; and the alternatives to federal prosecution. As in the case of individual defendants, corporation prosecutions rarely result in a criminal trial. More often, the corporation pleads guilty or enters into a deferred or delayed prosecution agreement.
During a criminal investigation and throughout the course of criminal proceedings, corporations enjoy many, but not all, of the constitutional rights implicated in the criminal investigation or prosecution of an individual. Corporations have no Fifth Amendment privilege against self-incrimination. On the other hand, the courts have recognized or have assumed that corporations have a First Amendment right to free speech; a Fourth Amendment protection against unreasonable searches and seizures; a Fifth Amendment right to due process and protection against double jeopardy; Sixth Amendment rights to counsel, jury trial, speedy trial, and to confront accusers, and to subpoena witnesses; and Eighth Amendment protection against excessive fines.
Corporations cannot be jailed. Otherwise, corporations and individuals face many of the same consequences following conviction. The federal Sentencing Guidelines influence the sentencing consequences of conviction in many instances. Corporations can be fined. They can be placed on probation. They can be ordered to pay restitution. Their property can be confiscated. They can be barred from engaging in various types of commercial activity. The Guidelines speak to all of these.
For example, the corporate fine Guidelines begin with the premise that a totally corrupt corporation should be fined out of existence, if the statutory maximum permits. A corporation operated for criminal purposes or by criminal means should be fined at a level sufficient to strip it of all of its assets. In other cases, the Guidelines recommend fines and other sentencing features that reflect the nature and seriousness of the crime of conviction and the level of corporate culpability.
This report is available in an abbreviated form without the footnotes or citations and attributions to authorities that appear here. The abridged report is entitled CRS Report R43294, Corporate Criminal Liability: An Abbreviated Overview of Federal Law.