The Justice Department says that a corporation is no scapegoat.

The Department’s first priority is to prosecute culpable individuals and not artificial entities.

But an article just out — Corporate Criminal as Scapegoat — finds that far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged.

The article was written by University of Virginia Law Professor Brandon Garrett.

“High profile failures to prosecute executives in the wake of the global financial crisis have only made the problem more urgent,” Garrett writes. “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 the article, titled The Corporate Criminal as Scapegoat,” Garrett sketches the path of individual prosecutions accompanying federal corporate prosecution agreements.

He finds thato nly 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,” Garrett writes. “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.”

Garrett proposes statutory, sentencing, and policy changes to tighten the connection between individual and corporate accountability for crimes.

Garrett proposes “a sustained investment in investigation resources and far larger teams of financial fraud prosecutions” that might even the playing field.”

“In other areas, if there is a concern that regulatory enforcers and prosecutors do not have adequate resources, we deputize and incentivize private attorneys general,” he suggests.

Could changes at the Department of Justice level improve matters?

“Prosecutors perhaps, should have to do far more to justify, even if internally, why they have targeted individuals in some areas and not in others,” Garrett writes.

“Are employees who participate in price fixing simply more culpable than bankers who ignore signs of money laundering or sales representatives who promote off-label marketing of prescription drugs? Perhaps so, but simply stating that the DOJ will prosecute all culpable individuals does not explain what the actual policy or practice is. Declinations need not and should not be public, to protect reputations of persons that prosecutors conclude did no criminal wrong. But where prosecutors have found that a company’s employees committed crimes, but no employees are prosecuted, perhaps more should be explained. There is even a concern that non-public amnesty or side letter deals have been reached with employees. To what degree that occurs, we cannot know. The Department of Justice could certainly clarify the relative importance of individual culpability in corporate cases, and the degree to which prosecutors should credit cooperation that does not result in clear proof of individual culpability.”

Garrett concludes by saying that “even if there is no one-size-fits-all policy for when corporate employees should be prosecuted, it is clear from these data that individual prosecutions have been neglected, but also that there are real challenges in bringing such prosecutions in corporate crime cases.”

“Given the magnitude of these most serious corporate crimes, we should all care deeply about better understanding the relationship between the criminal treatment of individuals and corporations, Garrett writes.”The solution is not to abandon corporate prosecutions in favor of individual prosecutions, as some critics have suggested. Instead, a range of statutory, sentencing, and policy changes should be made to tighten the connection between corporate and individual accountability. Corporate prosecutions need not come at the cost of individual accountability, and instead, corporate prosecutions can and should enhance individual accountability.”