This appeal before the Massachusetts Supreme Judicial Court raises the question whether a corporation can be convicted of a crime even though none of its employees has committed a crime, by aggregating various employees’ non-criminal acts of negligence to yield corporate criminal liability. The case arises out of the death of an elderly woman at nursing home operated by the defendant corporation. The Commonwealth indicted the nursing home on charges of involuntary manslaughter and neglect of a resident of a long-term care facility, in violation of Mass. G. L. c. 265, § 38 (since repealed by St. 2004, c. 501, § 9).
In her pre-trial papers, the Attorney General has relied in part on the traditional principle of vicarious liability to establish corporate criminal liability based on the criminal activity of an employee. However, the Attorney General has also made the novel argument that, if the evidence fails to establish criminal activity on the part of any one employee, the Commonwealth should still be able to convict the corporation by aggregating the merely negligent acts and omissions of various employees to yield a collective corporate criminal liability. The trial judge in the case referred this novel theory to the Appeals Court on a reservation and report, and the Supreme Judicial Court took the case for direct appellate review.
NELF filed an amicus brief, on behalf of itself, Associated Industries of Massachusetts, and the Massachusetts High Technology Council, arguing that the Court should reject the Commonwealth’s theory because it contravenes many bedrock principles of criminal law. NELF argued first, that it is settled law that a corporation’s criminal liability is necessarily vicarious and depends entirely on whether an agent has committed a crime. NELF pointed out that this principle follows from the fact that a corporation is not a living person and can act only through its agents. Therefore, criminal liability can only attach if one of those agents has committed a crime. Second, NELF argued that, as the Massachusetts courts have long recognized, criminal liability attaches generally only when an individual has acted with the requisite criminal state of mind or mens rea. But, as NELF argued, a state of mind is a discrete and unitary concept that either exists or does not exist in an individual. It is not an additive notion that can be constructed from various scattered lesser states of mind at the corporate level. In fact, argued NELF, the Court has already considered and rejected any such “collective intent” theory based on the aggregation of various employees’ conduct and knowledge, in Birbiglia v. Saint Vincent Hosp. Inc., 427 Mass. 80, 87 & n.5 (1998). Moreover, NELF argued that the Court explained with great care in the landmark case establishing involuntary manslaughter, Commonwealth v. Welansky, 316 Mass. 383 (1944), that a criminal state of mind is not reducible to many acts of negligence acts, and that the two concepts are in fact mutually exclusive. NELF also pointed out to the Court that many other jurisdictions have rejected the Commonwealth’s theory, expressly rejecting the notion that the agency relationship can transform negligence into criminal willfulness. Finally, NELF alerted the Court to the heavy economic and reputational consequences of prosecuting and convicting a corporation of a crime, especially where, as here, criminal liability is unwarranted because no agent or employee has committed a crime.
In its May 19, 2010 decision, the Court rejected the Commonwealth’s proposed theory of collective criminal intent and apparently embraced many of NELF’s arguments. As NELF had argued, the Court reaffirmed its precedent establishing that corporate criminal liability is necessarily vicarious and depends on the criminal conduct of an agent. If no one agent has committed a crime, than there is no criminal liability to impute to the corporation. As NELF had also argued, the Court concluded that criminal liability arises in an individual agent (and vicariously in a corporation) only when the individual’s wrongful act or omission is accompanied by the requisite culpable state of mind. The Court apparently agreed with NELF’s interpretation of its decision in Birbiglia, because the Court also concluded that it had already rejected the aggregation theory in proving a corporate state of mind: “[I]n civil proceedings, we have rejected the proposition that a mental state may be imputed to a corporation by aggregating the actions of employees where no one employee possessed that mental state. See Birbiglia v. Saint Vincent Hosp., Inc., supra at 87 n.5.” Finally, the Court addressed NELF’s concern about the deleterious economic consequences resulting from unwarranted criminal conviction of a corporation under the AG’s proposed theory, and acknowledged that many courts have rejected the Attorney General’s proposed theory.