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66 Fla. L. Rev. Forum 1 (2014)

handle is hein.journals/flrf66 and id is 1 raw text is: REHABILITATING CORPORATIONS Brandon L. Garrett* 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.1 Why is the view that prosecutors should more closely engage with corporate governance surprising or controversial? Others have argued that the game is not worth the candle. For example, Judge Jed Rakoff has recently and prominently argued that corporate prosecutions are not particularly worthwhile, where what prosecutors now do largely consists in imposing internal compliance measures that are often little more than window-dressing.,2 Still others decry undue intrusion in corporate governance by prosecutors who have no business stepping inside the boardroom. Cunningham argues that doing corporate prosecutions right means engaging with corporate governance more carefully, investigating what failures of governance contributed to the criminality, and clearly explaining what governance reforms can correct the problem. The fascinating case studies he provides suggest how insufficiently engaging with governance issues can result in a range of failures, from unnecessarily harming a company, to permitting recidivism, to magnifying governance 4 problems or even creating new ones. Of course, in most corporate prosecutions no case studies are possible, because we know little about any governance interventions beyond the often-boilerplate quality text of the agreements with prosecutors. We do * PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW. 1. Lawrence A. Cunningham, Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation andReform, 66 Fla. L. Rev. 1 (2014). 2. Jed S. Rakoff, The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?, New York Review of Books (January 9, 2014), http://www.nybooks.com/articles/archives/20 14/jan/09/financial-crisis-why-no-executive- prosecutions/. 3. Cunningham, supra note 1, at 3. 4. Id. at 25-40, 61-70.

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