Lanny Breuer went to London today to export American style corporate criminal justice.
Nutshell version – throw executives in jail, defer prosecutions of corporations.
The Justice Department Criminal Division chief told the IBC Legal’s World Bribery & Corruption Compliance Forum that “the strongest deterrent against corporate wrongdoing is the prospect of prison time.”
At the same time, Breuer defended the Department’s controversial reliance on deferred and non prosecution agreements to settle major corporate crime cases, claiming that their increased use has meant “greater accountability for corporate wrongdoing.”
“Whereas prosecutors often declined when their only choice was to indict or walk away, now companies know that avoiding the disaster scenario of an indictment does not mean an escape from accountability,” Breuer said.
And Breuer praised the UK’s move toward deferred prosecution agreements for major corporate crime cases.
“I am aware that the U.K. government recently put forth a proposal to introduce DPAs as a way of resolving corporate cases in the U.K.,” Breuer said. “Based on the United States experience, my sense is that the availability of DPAs here would represent a positive step forward.”
But the rise of deferred prosecution agreements for corporations has come under increasing criticism in recent months.
David Uhlmann is a Professor at the University of Michigan Law school and former head of the Environmental Crimes Section at the Justice Department.
“It is one thing when a first-time offender commits a minor drug offense and is told by prosecutors that she will not face criminal charges if she performs community service and does not commit any future violations,” Uhlmann told Corporate Crime Reporter last year.
“It is an entirely different matter when a large corporation is allowed to avoid criminal prosecution, by agreeing to pay millions – or billions – in civil penalties.”
“Apart from the ethical questions deferred prosecutions raise, they send a terrible message – if corporations agree to pay the government enough money, they can avoid criminal charges.”
“We would never allow a wealthy individual to avoid criminal charges by paying the government large sums of money, and we should not allow large corporations to do so either.”
Brandon Garrett is another deferred prosecution agreement skeptic.
Garrett is a professor at the University of Virginia Law School and is working on a book titled – Too Big to Jail: How Prosecutors Take On Corporations.
Garrett wonders, for example, why the Justice Department secures guilty pleas for environmental crimes while getting primarily deferred and non prosecution agreements in Foreign Corrupt Practices Act (FCPA) cases.
“There is nothing inherent in environmental crimes that requires guilty pleas and FCPA that requires deferred prosecution agreements, right?”
“No, if anything they are kind of similar,” Garrett told Corporate Crime Reporter in an interview earlier this year.