Beyond Yates: From Engagement to Accountability in Corporate Crime

Abstract

In 2015, U.S. Deputy Attorney General Sally Yates released a memorandum (the “Yates memo”) that makes several revisions to the Department of Justice’s Principles of Federal Prosecution of Business Organizations. Most significantly, the Yates memo states that corporations facing criminal scrutiny are now eligible for cooperation credit only if they provide prosecutors with all relevant information about the individual agents involved in crimes under investigation. This Essay assesses the Yates memo to situate it within the current social context of corporate criminal prosecutions. What I find is that the Yates memo represents a missed opportunity. Its guidelines amount to political talking points that are unlikely to produce meaningful change. As a practical matter, the guidelines are virtually impossible to execute, at least in ways that differ from the present enforcement regime. As a normative matter, they also risk causing significant and socially undesirable harms to firms and their employees. This analysis suggests that proponents of corporate criminal law reform should look elsewhere for progress. My recommendation is to shift the conversation from enforcement to more meaningful civic engagement. I conclude with a proposal to drive collaboration among federal officials, corporate leaders, educators, religious figures, lay groups, and other social actors who profess an interest in finding and fixing the social roots of corporate wrongdoing.

Keywords: Corporate crime; corporate prosecution; white collar crime; Yates memorandum; compliance