Too Vast to Succeed
28 Pages Posted: 4 May 2016 Last revised: 6 Jun 2016
Date Written: May 3, 2016
Brandon Garrett’s book, Too Big to Jail: How Prosecutors Compromise with Corporations, serves as a stinging indictment of the ways in which deferred prosecution agreements, the federal government’s preferred way for dealing with publicly-held corporate offenders, fail multiple tests of good governance. As Garrett argues, they arise out of an opaque process and over the long run, they may be falling short of securing meaningful compliance among corporate offenders and similarly situated organizations.
To cure this problem, Garrett proposes a straightforward but far-reaching restructuring of corporate criminal practice: prosecutors should presumptively indict corporate offenders, and judges should intervene in corporate affairs more often and more intensely to bring about credible compliance and governance changes. Thus, the core of Garrett’s proposal is to wrest power from the federal prosecutor and place it instead with the federal judge, who will employ her power to effect more lasting reforms that serve the public’s interest and reduce the incidence of corporate misconduct.
Garrett is indeed correct that the deferred prosecution process leaves much to be desired, but it is unclear just how well his judge-centered proposal would fare if implemented. Yoked as it is to corporate criminal law, Garrett’s preferred reform model provokes its own set of legitimacy concerns, particularly insofar as it enables federal judges to erect potentially indefinite and largely unconstrained interventions in corporate governance.
Accordingly, this book review concludes with a counterintuitive suggestion: Do less so that you can enforce more. Define corporate criminal liability with greater precision, reduce the collateral consequences of corporate indictment, and enact formal limitations on the judge’s ability to impose certain types of sentencing reforms on corporate actors. Such a prescription may sound like a full-scale retreat, but it aims to bring about the very result Garrett favors: a more effective and transparent process for punishing and reforming corporate criminals.
Keywords: Corporate Crime, Deferred Prosecution, Corporate Governance, Deterrence, Prosecutorial Discretion, Structural Reform, Sentencing
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