Corporate compliance programs in the United States have evolved substantially in the past several decades, expanding exponentially in both number and scope. Yet, our legal standard of corporate criminal liability for the acts of employees has remained largely unchanged for the past fifty years. United States v. Hilton Hotels established that a corporation can be held liable for the acts of its employee, even though the employee’s conduct may be contrary to their actual instructions or contrary to the employer’s stated policies. That holding, cited with favor by the Supreme Court, was based on a deeply flawed interpretation of precedent, yet has stood as good law for nearly five decades.

Corporations are innately unsympathetic “victims” to this injustice, but the potential harm spreads far beyond the Fortune 500. Prosecutorial discretion is the sole bulwark protecting corporations of all sizes from the potential of liability under Hilton Hotels. There is not a clear method of eschewing vicarious liability in criminal cases. Under the current regime, a corporation could pour a nearly endless amount of money towards a compliance function that has no guarantee of protecting the company from the criminal inclinations of a single rogue employee. This Note suggests that an affirmative defense to the common law doctrine of respondeat superior would be in the best interests of justice.