Bickel PLLC

Bill seeks to lower the bar – and boom – on white collar wrongdoing

Business executives targeted as defendants in criminal cases have historically been subjected to the same proof standard as other alleged wrongdoers. Prosecutors seeking to obtain convictions against them -- for purposes of this blog entry, in white collar criminal cases -- must prove their wrongful intent beyond a reasonable doubt. That standard is a bedrock legal principle and hallmark of American justice.

One presidential candidate wants to toss it in lieu of a lower guilt threshold spelled out in proposed federal legislation entitled the Corporate Executive Accountability Act.

What Sen. Elizabeth Warren (D-Mass) and other supporters of the CEAA want to see is the supplanting of the reasonable doubt standard by a far lower culpability threshold. The new would-be law would impose liability on top-tier business principals pursuant to a negligence test.

To wit: Federal charges would be allowable under the CEAA against executives who only “negligently permit or fail to prevent a violation of law” by others within their organizations.

Is that a good idea?

As underscored by a recent national news piece on the legislation, many diverse commentators think that the suggested revision is both illogical and harmful. One reasoned opinion stresses that the CEAA is “a very bad idea,” given that its diluted proof standard would likely imprison many key decision makers having only minimal culpability. Even an ex-head of the DOJ’s criminal division criticizes the diluted threshold, stressing the constitutional imperative that reasonable doubt of wrongdoing must exist to ethically impose criminal penalties on an individual.

Will the legislation fly?

As noted above, strong criticisms emerging from various quarters suggest that the CEAA is in for a rocky road as it seeks to garner further support.

Business principals and company managers with questions or concerns regarding any aspect of a white collar crime matter can seek guidance from a proven commercial law attorney/litigator.

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