Corporate Crime and Punishment: An Empirical Study
100 Tex. L. Rev. 285 (2021)
68 Pages Posted: 13 Feb 2020 Last revised: 16 Aug 2022
Date Written: December 2021
For many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate criminal enforcement overdeters beneficial corporate activity or in the alternative, lets corporate criminals off too easily. This debate has recently expanded in its polarization: On the one hand, academics, judges, and politicians have excoriated enforcement agencies for failing to send guilty bankers to jail in the wake of the 2008 financial crisis; on the other, the U.S. Department of Justice has since relaxed policies that encouraged individual prosecutions and reduced the size of fines and number of prosecutions. A crucial and yet understudied piece of evidence in this debate is to understand how corporate crime rates have responded to changes in enforcement practices. And yet, unlike most other types of crime, the government does not provide data about corporate crime levels. Therefore, we cannot easily determine whether these policy changes are effectively deterring future incidents of crime.
In this paper, we take important first steps in determining whether corporate crime, and financial institution crime in particular, is on the rise. Specifically, we proxy for corporate crime using three novel sources: the Financial Crimes Enforcement Network (FinCEN) Suspicious Activity Reports (SARs), consumer complaints made to the Consumer Financial Protection Bureau (CFPB), and whistleblower complaints made to the Securities and Exchange Commission (SEC). Each source reveals an increase in complaints or reports indicative of corporate misconduct in the wake of the 2008 financial crisis. We also examine levels of public company recidivism and find that they are also on the rise. And we document a potential explanation: recidivist companies are much larger than non-recidivist companies, but they receive smaller fines than non-recidivist companies (measured as a percentage of market capitalization and revenue). Put simply, for large companies, criminal penalties may be just another cost of doing business—and quite a low cost at that. We conclude by offering recommendations for enforcement agencies and policymakers. In particular, our results suggest that enforcers are unlikely to achieve optimal deterrence using fines alone. Enforcement agencies should therefore consider other ways of securing deterrence, such as by seeking penalties against guilty individuals and the top executives who facilitate their crimes.
Keywords: corporate crime, financial crisis, deterrence, law and economics, enforcement
JEL Classification: K1, K14, K22
Suggested Citation: Suggested Citation