The Problematic and Faintly Promising Dynamics of Corporate Crime Enforcement
30 Pages Posted: 14 Apr 2004
In this article, Professor Brown examines some distinctive problems presented by corporate crime enforcement that, on their face, seem troubling but that considered in context, he suggests, may actually have desirable effects. Professor Brown begins by noting that while most of constitutional criminal procedure addresses concerns of excessive governmental power, white-collar corporate offenders are less at risk. In contrast to street-crime defendants, they have ample access to counsel and a variety of means to resist government enforcement strategies. The article describes a range of practical barriers that make corporate crime harder to detect, investigate and prosecute and that, because of the wider range of regulatory possibilities (including civil enforcement), create opportunities for manipulation by corporate offenders. Professor Brown suggests, however, that these seeming difficulties actually provide a desirable counterbalance (albeit imperfectly and largely by coincidence) to a distinctive American preference for excessive use of criminal law to address wrongdoing and social harm. The article concludes that, while risks remain of both excessive government punitiveness on the one hand and excessive influence by corporate offenders to achieve undue leniency on the other, the practical barriers to corporate crime enforcement have the potential to moderate the government's pattern of populist-punitive enforcement in ways that could lead to improvements across the criminal justice enforcement spectrum.
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