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Corporate Criminal Liability and the Decline in Corporate Prosecutions
30 January 2019, 6:00 pm–8:00 pm
Event Information
Open to
- All
Organiser
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UCL Laws Events
Location
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LG26UCL Laws, Bentham HouseEndsleigh GardensLondonWC1H 0EG
An event organised by the UCL Centre for Criminal Law and the UCL Centre for Commercial Law with
- Samuel Buell, Bernard M. Fishman Professor of Law, Duke University Law School
- Brandon Garrett, L. Neil Williams, Jr. Professor of Law, Duke University Law School
- Mark Dsouza, Lecturer, UCL Faculty of Laws
Chaired by Professor Carsten Gerner-Beuerle and Dr Martin Petrin, UCL Faculty of Laws
About the talks
Paper 1: The Global Expansion of Corporate Criminal Liability: Effective Enforcement Across Legal Systems.
Speaker: Samuel Buell, Bernard M. Fishman Professor of Law, Duke University Law School
Discussant: Mark Dsouza, Lecturer, UCL Faculty of Laws
Abstract: The U.S. model of corporate criminal enforcement relies on the threat of very broad corporate criminal liability, with severe sanctions, tempered by negotiated settlements in which corporations are rewarded with lower penalties and avoidance of formal conviction, in exchange for corporate efforts to prevent crime (compliance) and assist prosecutors in detecting and prosecuting offenses (self-reporting and cooperation). In modified forms, this model has been attracting followers and producing lively discussions about reforming corporate criminal enforcement in European, Asian, and other jurisdictions. These conversations have as yet missed an essential component of the U.S.-style enforcement system: the manner in which legal regimes governing testimony, documents, data, and attorney conduct (what we call the “background law” of corporate criminal liability) determine the relative abilities of firms and governments to collect evidence of corporate wrongdoing, and thus relative positions at the bargaining table in settlement. These background legal regimes differ dramatically across jurisdictions and will greatly affect the extent to which adopting U.S.-style rules on corporate criminal liability and settlement will produce increased enforcement and sanctions for corporate crime. We explain the problem and suggest how other jurisdictions might shape enforcement rules and practices to account for the effects of differences in their background laws of corporate criminal liability.
Paper 2: Declining Corporate Prosecutions
Speaker: Brandon Garrett, L. Neil Williams, Jr. Professor of Law, Duke University Law School
Abstract: Ten years ago, people across the U.S. protested that “too big to jail” banks were not held after the financial crisis. Little has changed. Two years into the Trump Administration, data from the Duke and UVA Corporate Crime Registry allows one to assess what impact a series of new policies have had on corporate enforcement. To provide a snapshot comparison, in its last 20 months, the Obama Administration levied $14.15 billion in total corporate penalties—with 71 financial institutions and 34 public companies prosecuted. During the Trump Administration, corporate penalties declined. During its first 20 months, there were $3.4 billion in total penalties, with 17 financial institutions and 13 public companies prosecuted. These trends build over time—in each year, blockbuster cases come and go, creating swings in fines. However, consistent with these data, this Article describes changes in written policy, practice, and informal statements from the Department of Justice that have cumulatively softened the federal approach to corporate criminals. This Article also describes real continuity between administrations. A rise in corporate declinations, for example, represents a continuation of Obama Administration policy. A decline in the use of corporate monitors similarly reflects prior policy. The steady and low level of individual charging in corporate cases, reflects the ongoing lack of success of efforts to prioritize individual prosecutions, exemplified by the 2015 “Yates Memo.” That policy, like others, has now been formally relaxed. Corporate prosecution policy changes have been accompanied by institutional shifts with still greater impact. An approach emphasizing mass-charging of low-level federal offenses may drain resources from corporate matters. High-level vacancies within the DOJ and other enforcement agencies may compromise ability to coordinate resolution of complex cases. This Article concludes by proposing structural changes, such as an independent corporate enforcement functions, to enhance capacity and prevent pendulum shifts in administration of enforcement. How we handle corporate crime goes to the root of power imbalance in the economy that produced the financial crisis. Ten years gone, if we still have not learned the lessons of the last financial crisis, then the next one cannot be far ahead.
- About the speakers
Samuel Buell, Bernard M. Fishman Professor of Law, Duke University Law School
Sam Buell's research and teaching focus on criminal law and on the regulatory state, particularly regulation of corporations and financial markets. He is the author of Capital Offenses: Business Crime and Punishment in America’s Corporate Age (W.W. Norton & Co. 2016). His recent scholarship explores the conceptual structure of white collar offenses, the problem of behaviors that evolve to avoid legal control, and the treatment of the corporation and the white collar offender in the criminal justice system. Buell's publications have appeared in Georgetown Law Journal, Law & Contemporary Problems, Duke Law Journal, UCLA Law Review, NYU Law Review, Stanford Law Review, Cardozo Law Review, Indiana Law Journal, and the Oxford Handbooks. He is a member of the American Law Institute, has testified before the United States Senate and the United States Sentencing Commission on matters involving the definition and punishment of corporate crimes, and has delivered recent invited lectures in Australia, China, and Taiwan.
Buell joined the Duke Law faculty as a professor in 2010, after serving as an associate professor at Washington University School of Law in St. Louis and a visiting assistant professor at the University of Texas School of Law. Prior to his academic career, he worked as a federal prosecutor in New York, Boston, Washington, and Houston. He twice received the Attorney General’s Award for Exceptional Service, the Department of Justice’s highest honor, and was a lead prosecutor for the Department’s Enron Task Force. Buell clerked for the Honorable Jack B. Weinstein of the U.S. District Court for the Eastern District of New York and practiced as an associate with Covington & Burling in Washington, D.C. He graduated summa cum laude from New York University School of Law and magna cum laude from Brown University.
Brandon Garrett, L. Neil Williams, Jr. Professor of Law, Duke University Law School
Brandon L. Garrett joined the Duke Law faculty in 2018 as the inaugural L. Neil Williams, Jr. Professor of Law. A leading scholar of criminal justice outcomes, evidence, and constitutional rights, Garrett previously was the White Burkett Miller Professor of Law and Public Affairs and Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia.
Garrett’s current research and teaching interests focus on forensic science, eyewitness identification, corporate crime, constitutional rights and habeas corpus, and criminal justice policy. In addition to numerous articles published in leading law journals, he is the author of five books: The Death Penalty: Concepts and Insights (West Academic, 2018) (with Lee Kovarsky); End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Harvard University Press, 2017); Too Big to Jail: How Prosecutors Compromise with Corporations (Harvard University Press, 2014); Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation (Foundation Press, 2013) (with Lee Kovarsky); and Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press, 2011). Convicting the Innocent, an examination of the cases of the first 250 people to be exonerated by DNA testing, was the subject of a symposium issue in New England Law Review, and received an A.B.A. Silver Gavel Award, Honorable Mention, and a Constitutional Commentary Award. It was translated for editions in China, Japan and Taiwan. For more information, visit Garrett’s website.
His work has been widely cited by courts, including the U.S. Supreme Court, lower federal courts, state supreme courts, and courts in other countries, such as the Supreme Courts of Canada and Israel. Garrett also frequently speaks about criminal justice matters before legislative and policymaking bodies, groups of practicing lawyers, law enforcement, and to local and national media. He is involved with a number of law reform initiatives, including the American Law Institute’s project on policing, for which he serves as Associate Reporter.
Garrett maintains online data sets relating to his research. These include:
- End of Its Rope: Data on Death Sentencing
- Corporate Prosecution Registry
- Convicting the Innocent: DNA Exonerations Database
Garrett received his BA in 1997 from Yale University. He received his JD in 2001 from Columbia Law School, where he was an articles editor of the Columbia Law Review and a Kent Scholar. After graduating, he clerked for the Hon. Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit and then worked as an associate at Neufeld, Scheck & Brustin LLP in New York City.