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44 Am. Crim. L. Rev. 53 (2007)
Corporations Cry Uncle and Their Employees Cry Foul: Rethinking Prosecutorial Pressure on Corporate Defendants

handle is hein.journals/amcrimlr44 and id is 61 raw text is: CORPORATIONS CRY UNCLE AND THEIR EMPLOYEES CRY FOUL: RETHINKING PROSECUTORIAL PRESSURE ON CORPORATE DEFENDANTS Preet Bharara* ABSTRACT Judge Kaplan's sharp criticism of the government's tactics in the July 2006 KPMG decision, United States v. Stein, highlighted the federal prosecutorial policy, embodied in the so-called Thompson Memorandum, of pressuring corpora- tions to cooperate with investigations against their employees. While this decision has been hailed as placing overdue checks on runaway prosecutorial power, this Article suggests that such views misdiagnose the problem. The source of prosecu- torial leverage stems not from abuse of power but from a century of expansion of corporate criminal liability. Corporations are exposed to almost certain convic- tion for the misconduct of even one rogue employee under the doctrine of criminal respondeat superior Discussion of the problem to date focuses narrowly on either perceived prosecutorial excesses or the proper scope of corporate criminal liability. This Article fills the gap in the literature and joins these two debates by suggesting that it is precisely court-created liability rules that embolden the prosecutor and cow the corporation. There is little sustained and serious examina- tion of the likelihood and desirability of reining in prosecutorial power through a tightening of the standards for corporate criminal liability. This Article traces the development of the broad rule of vicarious corporate liability; outlines features of current prosecutorial guidelines that exploit the broad liability rule; and argues that the best way to rein in prosecutorial power is through tightening the standards for corporate criminal liability. The Article concludes with a look at various liability-narrowing alternatives that should be analyzed furtherfor their potential impact on the prosecutor-corporation negotia- tion dynamic. * Chief Counsel and Staff Director, Subcommittee on Administrative Oversight and the Courts, Committee on the Judiciary, United States Senate. © 2007 Preet Bharara. Assistant United States Attorney, Southern District of New York, 2000-2005. Harvard College, A.B., 1990; Columbia Law School, J.D., 1993. For their helpful comments, I am indebted to Viet Dinh, Rebecca Kelly, and Michael Gottlieb. Most importantly, I thank my wife Dalya for her patience, support, legal insight, and keen eye. The views expressed herein, and any errors, are solely my own.

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