Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms

Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms

Description

This chapter argues that prosecutors can effectively deter corporate crimes if they are given the combined power to prosecute firms for their employees' corporate crimes and the power to offer leniency to firms that monitor effectively, report misconduct, and cooperate. It begins with an overview of U.S. practice governing corporate liability and the wisdom of granting prosecutors authority to regulate corporate governance. It then considers the traditional U.S. approach to corporate criminal liability and explains why the Department of Justice had to abandon it in order to adequately deter crime. It also examines how corporate criminal liability evolved to embrace a proactive policy of using nonprosecution to convince corporations to deter crime. It suggests that prosecutors have gone too far in regulating companies and that civil regulatory authorities should exercise the sole authority over mandated corporate governance reforms, including monitoring requirements. Finally, it contends that prosecutors should use prosecution and the threat of prosecution to secure ex post cooperation from firms, instead of nonprosecution agreements or deferred prosecution agreements to induce structural reforms.

Source Publication

Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

Source Editors/Authors

Anthony S. Barkow, Rachel E. Barkow

Publication Date

2011

Removing Prosecutors from the Boardroom: Limiting Prosecutorial Discretion to Impose Structural Reforms

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