Commercial Prosecutorial Discretion: The Business of Justice or the Justice of Business?

“No government official in America has as much unreviewable power and discretion as the prosecutor,” many scholars agree. While prosecutors decide whether to initiate criminal proceedings, what charges to bring, and what sentencing recommendations to make, they also bear the enormous responsibility of having essentially no checks on their decisions. As one author has said, “the presumption that prosecutors act in good faith has made the charging power virtually immune from judicial review.” While other legal roles are held in check by higher courts or the threat of losing an election, prosecutors can act practically uninhibited.

The ABA standards inform us that “there are some situations where charges may not be appropriate,” but they “fail to clarify when such a situation exists, only stating that “[t]he prosecutor should . . . consider, and where appropriate develop or assist in developing alternatives to prosecution[.]” And while progressive prosecution, a practice intended to assist those without recourse, is often discussed in criminal legal scholarship, this discretion is also helping those with the most resources and power get out of criminal convictions.

Individual criminal sentencing has increased and taken a turn toward punishment rather than rehabilitation over the last 30 years. However, white collar crime prosecutions are hitting an all-time low. For example, in 2011, the Department of Justice (DOJ) prosecuted 10,162 of these cases, while Fiscal Year 2022 saw a mere 4,180 criminal prosecutions. Prosecutions against businesses occur in only 1% of cases because declination to prosecute white collar crimes is on the rise. Prosecutors instead choose a Non-Prosecution Agreement (NPA) or Deferred Prosecution Agreement (DPA), offering a chance to save face as long as the defendant instigates substantial reforms – and pays up. This is especially true when pressing charges could be a “death penalty” for a corporation. Prosecutors have to consider the potential effect on the economy if, for example, a large corporation is found guilty and goes bankrupt over an indictment or suit. This is exactly what happened in 2005 in Arthur Andersen LLP v. United States. However, while there are certainly arguments about overall economic consequences and federal interests, investigations surrounding corporations allow significantly more room for prosecutorial discretion than individual charges. This is because the DOJ’s prosecutorial guidance for charging corporations with federal crimes is more robust than the guidance for individuals.

Scholars with an eye on criminal courts are now beginning to question why this is the case, and why prosecutors cannot apply corporate charging considerations to individuals. Brandon Garrett has stated that corporations are punished “[n]ot by relying on strict and narrow sentencing guidelines, as with individuals, but by using more flexible guidelines that may give the biggest fish the best deals.” This aid to a potentially innocent defendant could also enable those with power to essentially buy their way out of the system if they know the right people and influence a prosecutor with less discretion.

What factors ought a prosecutor to consider in a criminal prosecution? Social impact is hardly quantifiable for an individual as it is for a company, where morale is made clear in financial gains and losses. For example, scholars claim that following the financial market collapse in 2009, the DOJ hesitated to prosecute systemic institutions because they feared another recession and wanted to build businesses up again. But why do corporations matter more to societal impact?

I propose three suggestions for prosecutorial reform to ensure that prosecutors consider impartial elements in both types of charges: disciplinary review, internal regulation, or a cost-benefit analysis.

Enforcement by disciplinary review, such as review by a panel of judges or a yearly performance analysis, would impose a more objective standard for accountability. According to some scholars, disciplinary standards could force a restructuring, and prosecutors, knowing they are being watched, might keep them in line. As is the case for judges, removing political motivations and public scrutiny, which otherwise “chill” their efforts at justice, could eliminate approval-seeking. One author even suggests a standard used in places like the U.K. where prosecution and defense attorneys spend a month each year, or even a full year, in each other’s shoes, gaining perspective and a more objective look at the system. 

Secondly, internal regulation is a means to strike a better balance between the subjective norms within the prosecutor’s office and the objective legal norms governing criminal investigation.  U.S. Attorneys’ offices do have policies requiring review or approval when striking cooperation agreements and deciding against prosecution, but they don’t always account for the social norms that have a significant impact on the defendant’s case. If objective legal norms keep an eye on racial or gender bias, for example, prosecutors should blend these norms with their own view of a defendant’s situation.

Thirdly, and perhaps most striking, is the suggestion of performing cost-benefit analyses on prosecutorial discretion. Why, asks Darryl Brown, is this not used within the prosecutor’s office as it is in other branches of government accountability? Taking this approach, he argues, can improve criminal law decision-making by revealing the “full social costs” in areas related to employment, marital attachment, family, and community. Part of the calculation done to determine whether to prosecute should include factors like diminished job prospects and family instability. These key social factors, such as the significant stigmatizing effect among neighbors and social groups, arguably affect the economy just as much as a corporate defendant’s finances, given the enormous number of currently-incarcerated persons in the United States. If these social factors are so prevalent, why aren’t they being weighed in every trial against an individual criminal defendant?

If prosecutorial offices developed any one of these strategies, they would likely see more accountability in their discretionary choices to prosecute. Every conviction matters. Just because an individual charged with a crime does not have the widespread reach of a corporation, an employer, or a business does not make her less important. When discrepancies based on money and influence are abolished, prosecutorial discretion could be used to ensure justice, not power.

Tags: prosecutorial discretion, conviction, white collar crime, corporate accountability, social costs, social factors, DPA, NPA, prosecutorial reform, criminal sentencing, progressive prosecution, criminal charging, corporate charging, cost-benefit analysis, accountability, disciplinary standards