The Metamorphosis of Corporate Criminal Prosecutions

13 Pages Posted: 8 Feb 2016 Last revised: 18 Feb 2016

Brandon L. Garrett

Duke University School of Law

Date Written: February 6, 2016

Abstract

Corporate criminal enforcement has exploded in this country. Billion dollar fines are now routine across a range of industries, where they were unimaginable a decade ago. We have federal prosecutors and the Department of Justice, together with the white-collar bar, to thank for this. Their innovations have transformed what was, in decades past, a backwater area of criminal practice. Yet deep concerns remain that corporate prosecution settlements offer lenient and non-transparent deals that fail to hold either the corporations or the culpable individuals adequately accountable. Now, the DOJ has begun to rethink the evolving corporate prosecution approach through the adoption of new guidelines. This Essay explores the most recent set of changes to the evolving DOJ approach, responding to an incisive critique offered by Professors Elizabeth Joh and Thomas Joo. While a commendable and overdue effort, I agree with Joh and Joo that the changes are incremental and may have perverse consequences. Still more troubling, the changes entirely fail to address separate concerns, including regarding calculation of fines, scope and effectiveness of compliance reforms, treatment of recidivists, and supervision of agreements. A deeper rethinking of the federal approach towards enforcing corporate crime is much needed. During a time of broader rethinking of our criminal justice priorities, the paramount concern with leniency and rehabilitation in corporate prosecutions should instead be directed to the benefit of individuals.

Keywords: corporate crime, white-collar crime, deferred prosecution

Suggested Citation

Garrett, Brandon L., The Metamorphosis of Corporate Criminal Prosecutions (February 6, 2016). Virginia Law Review Online, 2016; Virginia Public Law and Legal Theory Research Paper No. 19. Available at SSRN: https://ssrn.com/abstract=2728682

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

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