52 Pages Posted: 3 Mar 2014 Last revised: 13 May 2015
Date Written: March 3, 2014
Deterrence theory, rooted in the methodology of law and economics, continues to dominate both the theory and practice of white-collar crime enforcement. By manipulating the disincentives of prospective wrongdoers, deterrence aims to efficiently reduce crime and maximize taxpayers’ utility. However, the rise of international commerce presents a challenge it cannot meet. Using a combination of empirical evidence and quantitative modeling, and drawing on anti-bribery law (particularly the U.S. Foreign Corrupt Practices Act) as an example, this Article shows that deterrence will tend to increase, rather than decrease, net levels of corporate crime in developing countries.
The ever-increasing power of multinational corporations thus calls for a new theory of punishment, one that uses criminal enforcement to address the systemic causes of crime. That theory, quite ironically, is restorative justice. By involving the perpetrator, victim, and community in the sentencing process, restorative justice does not merely punish the wrongdoer, but remedies the harm caused by the crime, prevents future harm, and reintegrates the defendant into the very community it violated. Though generally thought to apply only to the traditional crimes of natural persons, this Article demonstrates that the U.S. Constitution and Sentencing Guidelines already authorize corporate sentencing practices rooted in restorative justice principles. More to the point, for two decades the U.S. Department of Justice has quietly been implementing restorative justice principles in domestic white-collar environmental sentencing. Drawing on those precedents, this Article builds a model for extraterritorial white-collar criminal punishment that advances the interests of U.S. corporations and enforcement agencies alike, benefits the overseas victims of corporate crime, and requires no new legal authorization to implement.
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