Document Type

Article

Publication Date

2020

Abstract

One of corporate criminal law’s most enduring mysteries is the persistence of the deferred prosecution agreement (DPA), the means by which federal prosecutors often dispose of corporate prosecutions. This extra-judicial settlement device attracts near-universal criticism. Progressives complain that DPA settlements are too weak and allow corporate managers to treat enforcement as just another cost of doing business. Good-government advocates worry that the process that generates these agreements is often too opaque. And corporate defenders claim that they impose unnecessary and inefficient costs on legitimate operations. Despite these criticisms, DPAs have remained one of the federal prosecutor’s key tools for addressing corporate wrongdoing.

This contribution to Duke Law School’s Symposium: Corporate Crime 20 Years After the Creation of the Justice Department’s Prosecution Policy, explores two related questions: Why amid so much criticism, has the Justice Department continued to use extrajudicial settlements to address corporate crime? And if the Justice Department finds these settlements valuable, why has it been unable to generate greater support for its approach?

The answer to these questions lies in our failure to agree on corporate criminal law’s primary purpose. Neither academics nor practitioners concur on why we punish corporations. This lack of consensus, in turn, permits the DPA to outshine its potential alternatives. To better understand this dissensus, I devise a taxonomy of how commentators conceptualize corporate crime and its enforcement. Some see it as just another subspecies of crime; some see it as an unconventional species of regulation; and finally, some conceptualize it as the means for securing potentially wide-ranging structural reform. Each of these viewpoints generates its own set of normative claims, and each imagines an enforcement nirvana that functions differently from the approach that exists today.

How can we best solve this lack of consensus? Perhaps we should look to the legislature. For years, Congress has played a remarkably small role in the development of corporate criminal law. Instead, it has ceded power and responsibility to its coordinate branches. As a result, disagreements about what corporate crime is and what its prosecution should have achieve have festered unaddressed. The final Part of this Article therefore turns to the question of legislative reform and the ways in which legislative effort might yield greater agreement on corporate crime enforcement’s purpose and consequently produce enforcement approaches more effective and less reviled than the much maligned DPA.

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