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This Article examines the use of corporate culpability in the Federal Sentencing Guidelines and addresses three major questions: In light of the traditional unimportance of culpability in corporate criminal law, is corporate culpability an appropriate concern of the Guidelines? If so, how is corporate culpability best conceptualized? Finally, how do the Guidelines understand corporate culpability, and how close do they come to embodying this most satisfying theory? Part I of the Article discusses the principal reasons why culpability has been important at the trial and sentencing of individual criminals, and argues that similar reasons justify concern with culpability in the sentencing of corporate offenders. Although culpability is not the only important factor in corporate sentencing, Part I concludes, it is a legitimate concern of the Guidelines. Part II sets out three alternative conceptions of corporate culpability, those implicit in the two prevailing theories of corporate criminal liability-the doctrine of respondent superior and the doctrine of Section 2.07 of the Model Penal Code-and a third conception that has received considerable support from scholars of corporate crime. Part II argues that it is this third conception, termed the "corporate character theory," that provides the most adequate understanding of corporate culpability, and that this theory is particularly well-suited for use in the sentencing of organizational criminals. Finally, Part III explores the use of culpability by the organizational guidelines themselves, and contends that they employ a conception of corporate culpability that is closely related to the corporate character theory. In addition, it attempts to show how the adoption of the corporate character theory allows the Guidelines to pursue a wider range of sentencing aims than is traditional in the sentencing of corporations. Although this Article argues that culpability is a legitimate consideration in corporate criminal sentencing, it does not contend that it is the only factor, or even that it trumps all others. Ultimately, the success of the organizational guidelines depends not merely on their treatment of culpability, but on their ability to achieve the entire range of sentencing goals. In some cases, achievement of these goals may require that corporate culpability be ignored. This paper does not attempt to determine whether the Guidelines in fact accomplish all the objectives of corporate sentencing. Its aim is more modest: to show that the Sentencing Commission's deference to corporate culpability is not misplaced, and that, to the extent that culpability is important, the Guidelines accurately assess it.

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Arizona Law Review



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