The Humanization of the Corporate Entity: Changing Views of Corporate Criminal Liability in the Wake of Citizens United

Although the recent United States Supreme Court decision in Citizens United v. Federal Election Commission clearly controls the First Amendment rights of corporations, the effect of Citizens United on corporate criminal liability is less obvious, though equally (if not more) significant. The Court’s view that corporations are equal to human beings, at least under the First Amendment’s Free Speech Clause, when combined with the traditional understanding that corporations are considered “persons” under the United States Constitution, likely impacts the way that corporations’ alleged misdeeds are investigated by the government and the manner in which the government subsequently deals with corporate misconduct, specifically through deferred prosecution agreements and non-prosecution agreements. In particular, certain provisions that are typically included in deferred and non-prosecution agreements may have to be altered or eliminated from use altogether in the wake of Citizens United. Another result prompted by Citizens United could be the implementation of judicial oversight over deferred and non-prosecution agreements, which would include the submission of all such agreements to federal courts for approval and the provision of an opportunity for a corporation to be heard if the government makes a unilateral claim of breach. Undoubtedly, these changes would greatly alter the landscape of corporate criminal liability in the United States