Rachel E. Barkow of New York University School of Law has posted “Using the Corporate Prosecution and Sentencing Model for Individuals: The Case for a Unified Federal Approach” on SSRN (Law and Contemporary Problems, Forthcoming). The following is the abstract.
This essay explores the different approaches the Department of Justice and Sentencing Commission have taken to individual and corporate defendants and explain why aspects of the corporate model should apply to individual cases as well. Part I will describe the key attributes of the modern federal model for individuals. Its emphasis is on controlling the discretion of line prosecutors and judges and shows a marked preference for severity. Part II will explain how the approach to corporate criminal law enforcement emphasizes individual assessment, the need to balance the costs of punishment with its benefits, and an emphasis on considering other sanctions in making charging and sentencing decisions. Part III will explore some of the lessons the federal approach to corporations has to offer for cases involving individuals. There is no reason to maintain a policy that sees the value in saving and recognizing the worth of companies, but ignores the value in saving and recognizing the worth of individuals.
Barkow, Rachel E., Using the Corporate Prosecution and Sentencing Model for Individuals: The Case for a Unified Federal Approach (December 31, 2020). Law and Contemporary Problems, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3758236