44 Am. Crim. L. Rev. 1287 (2007)
Trends in Corporate Criminal Prosecutions

handle is hein.journals/amcrimlr44 and id is 1295 raw text is: WHY PUNISH?
TRENDS IN CORPORATE CRIMINAL PROSECUTIONS
Pamela H. Bucy*
This essay suggests that in the years ahead the number of corporate criminal
investigations is likely to increase but fewer businesses will be indicted. Part I
briefly reviews the legal standards for imposing corporate criminal liability and
the policy issue's surrounding the issue of corporate criminal liability. Part II
looks at why the number of criminal investigations of corporations is likely to
increase and suggests two reasons. The first is law enforcement's response to
the corporate scandals in recent years.' Law enforcement was caught unaware
by the scope of corporate fraud and, understandably doesn't want that to happen
again. Law enforcement officials will be more vigilant for the foreseeable
future. The second reason is the recent growth in various carrot and stick
incentives for disclosing corporate wrongdoing to law enforcement. These in-
centives include whistleblower statutes, Department of Justice policies, Securities
and Exchange Commission rules, U.S. Sentencing Guidelines, and American Bar
Association ethical rules for attorneys.2 Together, they mean that more corporate
wrongdoing will come to law enforcement's attention. Part III discusses why we
can expect relatively few of the increasing number of corporate investigations to
result in indictment. The main reason is Arthur Andersen, the accounting firm that
was convicted for obstruction of justice, went out of business as a result of its
prosecution, and then saw its conviction overturned by the United States Supreme
Court. Because of the Arthur Andersen experience, prosecutors now are more
cautious when targeting a corporate entity. In addition to the concern that
aggressive prosecution may destroy a viable business, law enforcement wants
corporations to disclose any wrongdoing that may have occurred. Foregoing
indictment, in lieu of deferred prosecution agreements, for example, provides a
strong incentive for such disclosure.
* Bainbridge Professor of Law, University of Alabama. I am most grateful to Paige Thead and Robert Marshall
for their research help on this essay.  2007, Pamela Bucy.
1. See Kathleen F. Brickey, From Enron to WorldCom and Beyond: Life and Crime After Sarbanes-Oxley, 81
WASH. U. L.Q. 357, app. A (2003) (summarizing major corporate fraud prosecutions).
2. Pamela H. Bucy, Carrots and Sticks: Post-Enron Regulatory Initiatives, 8 BuFF. CRm. L. REv. 277
(2005) [hereinafter Bucy, Carrots and Sticks].
3. See infra notes 96-99 and accompanying text.

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