One of the most remarkable stories in criminal law is the recent rise of corporate prosecutions across the world. In the past, even in countries that permitted corporations to be prosecuted for crimes, such prosecutions were not a common practice and any fines were minimal. In the past fifteen years, though, in the United States, many of the largest corporate prosecutions in the world have been brought, often involving international crimes by multinational companies. Billion dollar corporate penalties are now a regular occurrence. Multinational prosecutions have also involved cooperation by prosecutors across countries and parallel prosecutions of the same corporation for crimes committed in different countries.

Over the past decade and a half, federal prosecutors in the U.S. have adopted an approach in which settlement negotiations with companies are resolved, sometimes through a plea agreement, but in the largest cases, with agreements entered largely out of court and without judicial oversight. These agreements, called deferred and non-prosecution, have added new flexibility but also some additional uncertainty to the practice of corporate prosecutions. This U.S. approach has impacted countries that have sought to emulate the U.S. approach or adopted approaches seeking to improve upon it. In this Chapter, I discuss how this new U.S. approach has altered the international corporate prosecution landscape.

This Chapter begins by discussing: (1) varying standards for corporate criminal liability; then (2) underlying corporate crimes and how standards and enforcement approaches may vary depending on the type of crime; (3) settlement approaches towards corporate criminal cases; (4) criticisms of corporate crime settlement approaches; and (5) international approaches and cooperation in corporate crime cases. There are no definitive answers to the question whether to adopt one approach or another towards corporate criminal liability. Corporate crimes can be incredibly costly and serious, but hopefully the experimentation with enforcement approaches will continue to produce increased enforcement and stronger deterrents against corporate crime across the globe.

 

Read the full article on SSRN.

Brandon L. Garrett

Associate Reporter, Policing Principles

Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law  at Duke Law School. His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law. Garrett’s recent research includes studies of DNA exonerations and organizational prosecutions. In addition to numerous articles published in leading law journals, he is the author of five books, including: The Death Penalty: Concepts and Insights (West Academic, 2018) (with Lee Kovarsky); and End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Harvard University Press, 2017).

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