Regulation by Prosecutors Conference Takes Shape
23 Corporate Crime Reporter 10, March 8, 2009

What are the risks and benefits of deferred prosecution agreements?

Should they be used?

Is it appropriate for prosecutors to impose industry altering norms despite the lack of procedural rules that typically govern the regulatory process?

How should corporate criminal liability regimes be altered to induce corporations to prevent wrongdoing and to aid the government in deterring and punishing corporate crime?

Should prosecutors be able to use statements by employees who cooperate with monitors and independent private sector investigators against those employees in a criminal prosecution?

What are the causes of corporate crime and wrongdoing?

These are some of the questions that will be asked on May 8, 2009 at NYU Law School where the Center on the Administration of Criminal Justice will hold a one-day conference titled – Regulation by Prosecutors.

The director of the Center, Anthony Barkow, has pulled together some of the top prosecutors and defense attorneys in the field of corporate crime including Lockheed Martin’s James Comey, Debevoise partner Mary Jo White, Eric Corngold from the New York Attorney General’s office, Paul Weiss partner Ted Wells, Katten Muchin partner Gil Soffer, Gibson Dunn partner Mark Schonfeld, and assistant U.S. Attorney Raymond Lohier.

And a group of prominent law professors will also be participating, including NYU’s Harry First, Yale Law School’s Kate Stith, Michigan’s Vik Khanna, Duke’s Lisa Griffin, Brandon Garrett from the University of Virginia Law School, and Richard Epstein from the Chicago School of Law.

In an interview last week with Corporate Crime Reporter, Barkow said that there will be four panels – two in the morning and two in the afternoon.

“The first panel will give a broad overview of regulation by prosecutors,” Barkow said. “How does it work? What are the pitfalls and advantages? Should it happen at all?”

“The second panel looks at how the process can be improved. Should it be subject to more or less oversight?”

“The third panel, after lunch, will address issue of who are the appropriate actors in this area – federal or state prosecutors? The pluses and minuses of both. The focus will be on some actions in New York by the Attorney General’s office here and comparing those to federal government actions.”

“And the final panel will look at corporate monitoring,” Barkow said.

Barkow said that the conference will explore all sides of the issue.

“Instead of bringing these deferred and non prosecution agreements, maybe prosecutors should either indict or drop the case,” Barkow said. “Should they indict more companies and create a more credible deterrent effect? That is a perspective that people have. There maybe an uptick in corporate crime prosecutions. But I don’t know that anyone would claim that everyone who commits a corporate crime is being prosecuted. Obviously, in every area of criminal enforcement, there is a lot of discretion being exercised. There are probably many prosecutors out there who are unable or unwilling to bring these corporate crime prosecutions. That could be a problem. They are too complicated, too resource intensive, too time intensive. But maybe those prosecutors who can bring them should bring more of them.”

[For a complete transcript of the Interview with Anthony Barkow, see 23 Corporate Crime Reporter 10(12), March 9, 2009, print edition only.]


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