Response to Lawrence A. Cunningham, Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform
Blockbuster corporate fines grab headlines, but corporate criminal prosecutions have rapidly evolved far beyond using monetary penalties to punish complex organizations. A central goal of federal prosecutors is to rehabilitate corporations, and not simply to fine them. Indeed, some of the largest companies now obtain deferred and non-prosecution agreements that permit them to avoid an indictment and a conviction. In deciding not to fully pursue such companies to a conviction, prosecutors emphasize how they can offer alternatives to prosecution in order to secure positive changes to compliance and ethics programs. Such structural reforms also implicate corporate governance structures, and can involve sustained interventions in the workings of a corporation. Lawrence A. Cunningham’s wonderful new article takes the provocative and counterintuitive position that prosecutors should care about rehabilitating corporate governance far more and not less.