A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop original empirical data detailing the path of individual prosecutions accompanying federal corporate prosecution agreements. Only 34 percent of federal corporate deferred and non-prosecution agreements from 2001-2014 were accompanied by charges against individuals. Those prosecutions produced uneven results. Only 42 percent of those charged received any jail time. There were large numbers of outright losses: 15 percent terminated in acquittals or dismissals. Only a handful of the cases involved high-level executives. These findings illustrate the challenges posed by organizational complexity and the manner in which it can obscure fault. Contrary to the calls of prominent critics, I argue that bringing more individual criminal cases cannot adequately substitute for prosecuting companies. Instead, corporate prosecutions should be leveraged to enhance individual accountability. In conclusion, I propose statutory, sentencing, and policy changes to tighten the connection between individual and corporate accountability for crimes.
Brandon L. Garrett, The Corporate Criminal as Scapegoat, 101 Virginia Law Review 1789-1853 (2015)